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IndustrialDismissedNot stated in the judgment (Industrial Cause; conciliation report considered)· [2013] KEIC 6 (KLR)

Kenneth Kipkemboi Settim & Jossy M Kioko v National Social Security Fund, Board of Trustees (Cause 204 of 2011) (Employment and Labour) [2013] KEIC 6 (KLR)

Industrial Court of Kenya
14 June 2013
1,602 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled that a conciliator's report is only advisory, and it refused to reinstate two employees dismissed over pre-2003 corruption charges.

What this practically means

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Executive summary

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The two Claimants, former employees of the Respondent, sought adoption and enforcement of a conciliator's report recommending that they be reinstated and then suspended under section 62(1) of the Anti-Corruption and Economic Crimes Act (ACECA). They had been interdicted and dismissed after being charged with corruption offences allegedly committed on 23rd July 2002. Counsel for the Respondent objected that the alleged offences predated ACECA's commencement in May 2003, that the conciliation report was procedurally deficient and riddled with errors, and that the dismissal was lawful under section 17(1)(g) of the repealed Employment Act, which permitted dismissal on reasonable and sufficient grounds of suspicion of a criminal offence to the employer's detriment. Counsel for the Claimants relied on Article 159(2)(d) of the Constitution and urged that the report be adopted since the Respondent should have challenged it earlier. The Court held, under section 15 of the Industrial Court Act, that conciliation is merely an attempt at settlement; a conciliator is not a judicial body exercising judicial authority, and the Court is not bound by the report and may adopt or decline its findings. On the merits, the Court found the offences predated ACECA, so the suspension regime could not apply retrospectively, and section 62(4) preserved residual power to dismiss under other law. The dismissal under the then-operative Employment Act was lawful and unimpeachable. The Claim was dismissed with costs.

Key legal issues

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01

Effect and weight of a conciliator's report under the Industrial Court Act

Holding

The Court may adopt or decline the findings of a conciliator; the report is not binding because a conciliator is not a judicial official exercising judicial authority.

Reasoning

Section 15 of the Industrial Court Act empowers the Court to adopt appropriate means of dispute resolution including conciliation, in line with Article 159(2)(c) of the Constitution. The Court retains its powers and cannot delegate them. The conciliation here was merely an attempt at settlement; the report is a tool to guide the Court if no resolution was reached, and the Court is not strictly bound by it.

p. 2
02

Lawfulness of dismissal under the law applicable at the time of the alleged offences

Holding

The dismissal was lawful because the offences were allegedly committed on 23rd July 2002, before ACECA commenced, and the then-applicable Employment Act s.17(g) permitted dismissal on reasonable and sufficient grounds of suspicion of a criminal offence.

Reasoning

ACECA came into force in May 2003, after the alleged offences. The Employment Act Cap 229, then in operation, allowed dismissal under s.17(g) where an employee commits, or is reasonably suspected of committing, a criminal offence against or to the substantial detriment of the employer. That provision is equivalent to s.44(4)(g) of the Employment Act 2007. The Respondent's action was within the law and cannot be challenged.

p. 3
03

Whether s.62(1) of ACECA (suspension at half pay) applies to compel reinstatement and suspension of the Claimants

Holding

It does not: s.62(4) preserves any power to suspend without pay or dismiss under other law, and s.62(7) excludes charges laid before the Act came into operation.

Reasoning

Section 62(1) provides for suspension at half pay upon charge, but s.62(4) states the section does not derogate from any power or requirement under any law under which the officer may be suspended without pay or dismissed. The Employment Act s.17(g) supplied such power. Additionally, the alleged offences predate ACECA, so the suspension regime could not be applied retrospectively.

p. 4

Legal principles established

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  • The Court is not bound by a conciliator's findings; a conciliator is not a judicial body exercising judicial authority under Article 159, and the report is at best a tool to guide the Court.
  • Section 62(4) of ACECA preserves residual power under other laws to suspend without pay or dismiss a public officer charged with a corruption offence, provided there is power or requirement under that other law.
  • Dismissal under the repealed Employment Act s.17(g) on reasonable and sufficient grounds of suspicion of a criminal offence against the employer's detriment was lawful and cannot be challenged; the law cannot be applied retrospectively.

Court orders

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  1. 1.The Claim (seeking adoption and enforcement of the conciliator's report recommending reinstatement and suspension) is dismissed with costs
  2. 2.It is so ordered
Jurisdiction invoked
Industrial Court Act, s.15, adopting alternative dispute resolution in accordance with Article 159(2)(c) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenneth Kipkemboi Settim & Jossy M Kioko v National Social Security Fund, Board of Trustees (Cause 204 of 2011)  (Employment and Labour) [2013] KEIC 6 (KLR)", Case Analysis (2013). Not stated in the judgment (Industrial Cause; conciliation report considered). Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2013/6/eng@2013-06-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.