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IndustrialPartially AllowedCause 1073 of 2012· [2014] KEIC 6 (KLR)

Abraham Gumba v Kenya Medical Supplies Authority (Cause 1073 of 2012) [2014] KEIC 6 (KLR)

Industrial Court of Kenya at Nairobi
26 May 2014
JRJames RikaNMNzioki wa Makau
8,461 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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KEMSA unfairly sacked its IT officer without valid reasons or fair procedure, and the court awarded him 10 months' salary in compensation.

What this practically means

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Executive summary

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Abraham Gumba, employed by KEMSA as an IT Officer on a one-year contract commencing 1st July 2011, had his contract terminated on 1st September 2011 on grounds of poor work performance, insubordination and interference with KEMSA's ICT systems. He sued for declarations, withdrawal of the termination letter, 10 months' remaining contract salary, 12 months' compensation and general damages. The Court first determined he was not on probation: the Human Resources Manual setting a six-month probation was not shown to have been availed and signed by him, and after five years with a consortium operating in KEMSA's premises he was not a new employee. On substance, none of the three grounds was substantiated: there was no appraisal or record of warnings; the insubordination charge lacked particulars and in fact related to the Claimant's refusal to release the Pprolog database owned by Franz Frederichs, an order the Court held was not lawful or proper, since KEMSA was seeking to circumvent intellectual property law; and conflict of interest was known to KEMSA before employment and never advanced in the termination letter. Procedure was also flawed - no written charges, no show-cause letter, only an oral warning minutes before termination. The Court declared the termination unfair and awarded 10 months' salary (Kshs. 1,003,420) as compensation for economic injury, holding that payment of anticipatory salaries on top of compensation would unjustly enrich the Claimant. Declaratory orders for withdrawal of the termination letter and general damages were declined, the latter on the basis of judicial restraint respecting Parliament's 12-month capping. No order was made on costs and interest.

Key legal issues

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01

Whether the Claimant was on probation at the time of termination

Holding

The Claimant was not on probation; he was in a continuous regular employment relationship

Reasoning

The contract did not explicitly provide for probation. The Human Resources Manual, which set a six-month probation, was not shown to have been availed, received and signed by the Claimant, and so did not bind him. Having served five years in the same IT role within a consortium operating in KEMSA's premises, the Claimant was not a new employee. Payment of a full month's salary in lieu of notice was inconsistent with the two-week notice applicable to probationary termination.

p. 9
02

Whether termination was substantively justified

Holding

None of the three grounds (poor performance, insubordination, interference with ICT systems) was substantiated; the conflict of interest allegation was afterthought and not stated in the termination letter

Reasoning

No appraisal or targets supported the poor performance claim; no record of warnings existed. The insubordination charge lacked particulars, and the alleged defiance related to an improper order to release data belonging to Frederichs, circumventing intellectual property law. Interference with ICT systems was implausible for an employee unfamiliar with the system. Conflict of interest was known to KEMSA before employment and never advanced in the termination letter.

p. 11
03

Whether termination was procedurally fair

Holding

Procedure was flawed; the Section 41 procedural guarantees were violated

Reasoning

The Claimant received no written charges, no show-cause letter, and only an oral warning minutes before termination. There was no record of a disciplinary meeting and he was not accompanied by a fellow employee or union representative. After five years of association with KEMSA, he deserved better than this cavalier treatment.

p. 12
04

Remedies: whether anticipatory salaries, general damages and compensation should be granted

Holding

Declaratory orders declined; anticipatory salaries granted as compensation at 10 months' salary; general damages refused

Reasoning

The declarative orders sought served no executory purpose. Payment of salaries for unworked months in addition to compensation would enrich the Claimant unjustly, so the Court converted the prayer into a 10-month compensation award. Exemplary damages are discouraged under the Industrial Court Rules, and the 12-month cap reflects Parliament's balance.

p. 14

Legal principles established

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  • Human Resources Policies and Procedures Manuals do not automatically become part of the employment contract unless adopted by a clause and received and signed by the Employee
  • Probation is for new employees to allow job adjustment and assessment; it is not applicable to an employee transitioning from a long-serving role within a consortium of the same employer
  • Defiance of an unlawful or improper order by an employer does not constitute insubordination
  • Poor work performance must be substantiated by performance targets and appraisal
  • The Court should exercise restraint in awarding damages beyond the 12-month statutory cap, except where constitutional, contractual and statutory violations coalesce

Court orders

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  1. 1.It is declared termination of the Claimant's contract was unfair
  2. 2.The Respondent shall pay to the Claimant 10 months' salary in compensation at Kshs. 1,003,420, within 30 days of the delivery of this Award
  3. 3.No order on the costs and interest

Authorities

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Legislation

  • Employment Act 2007Section 41
  • Employment Act 2007Section 42 [1]
  • Employment Act 2007Section 43
  • Employment Act 2007Section 44 [4] [a], [d], [e]
  • Employment Act 2007Section 45
  • Employment Act 2007Section 49
  • Employment Act 2007Section 6
  • Industrial Court Act 2011Section 12
  • Industrial Court [Procedure] Rules 2010prohibition on exemplary or punitive costs
  • Trade Disputes Act Cap 234capping of compensatory damages at 12 months' salary

Cases cited (6)

  • Carole Nyambura Thiga v. Oxfam
    [2013] e-KLR
  • Kenya Union of Journalists v. the Standard Group Limited
  • Sims v. the Board of Trustees Holly Springs Municipal Separate District School
    414 SO. 2d 431 [Miss. 1982]
  • Eastwood & Another v. Magnox Electric PLC; McCabe v. Cornwall County Council & Others
    [2004] UKHL 35
  • Patrick Njuguna Kariuki v. Del Monte Kenya Limited
  • G.M.V v Bank of Africa Kenya Limited
    [2013] e-KLR
Jurisdiction invoked
Industrial Court Act 2011, Section 12; Employment Act 2007 (Sections 41, 43, 45, 49)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abraham Gumba v Kenya Medical Supplies Authority (Cause 1073 of 2012) [2014] KEIC 6 (KLR)", Case Analysis (2014). Cause 1073 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/6/eng@2014-05-26

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