Namachi v National Transport and Safety Authority (Cause 728 of 2019) [2024] KEELRC 2496 (KLR)
The bottom line
#A Kenyan court ruled NTSA rightly dismissed an employee for sharing system passwords, holding workplace policy violations can justify summary dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was for a valid and justified reason
The dismissal was justified: the claimant shared her login credentials, facilitated fraudulent publications, replacements of genuine drivers' records and unprocedural Class 'A' endorsements, contrary to the HR Policy Manual and Section 44(4) of the Employment Act
The court found the claimant admitted sharing her system login credentials despite an internal memo prohibiting it, failed to report any alleged hacking in writing as required by policy, and could not explain the flagged discrepancies in system logs under her credentials. Fraud and failure to maintain integrity constituted gross misconduct under Section 3 of the HR Policy Manual and Section 44(4)(c) of the Employment Act.
Whether the disciplinary procedure was fair and in accordance with the HR policy
The procedure was fair; the claimant was issued a show cause notice, replied, and attended a disciplinary hearing, though she failed to give satisfactory responses
The court held the show cause notice set out the particulars of the allegations, the claimant replied, and she was invited to and attended a disciplinary hearing. The director general, as CEO, had authority to issue the notices and was not acting outside his mandate. Relying on KRA v Maginga Salim Murgani, fairness is not determined solely by the oral nature of a hearing.
Whether criminal clearance by the Anti-Terrorism Police Unit barred internal disciplinary proceedings
No; internal disciplinary proceedings and criminal procedures carry different standards of proof and requirements
The court, relying on Judicial Service Commission v Shollei, held that external criminal accountability does not absolve an employee from internal accountability within the public entity, so the respondent was entitled to proceed with disciplinary proceedings under its HR policy notwithstanding the claimant's clearance by police.
Legal principles established
#- An employer may formulate policies and procedures constituting gross misconduct over and above Sections 41 and 44 of the Employment Act
- Clearance by criminal investigation bodies does not bar internal disciplinary proceedings; the two carry different standards of proof
- Fairness of a hearing is not determined solely by its oral nature; it may be conducted through exchange of letters
Court orders
#- 1.The claim is dismissed with costs to the respondent
- 2.The claimant should attend the shop floor and obtain her Certificate of Service in terms of Section 51 of the Employment Act
- Jurisdiction invoked
- Employment and Labour Relations Court original jurisdiction under the Employment Act and the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Namachi v National Transport and Safety Authority (Cause 728 of 2019) [2024] KEELRC 2496 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2496/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.