Bramuel Dibondo Musundi v Kenya Revenue Authority
The bottom line
#Kenya's Court of Appeal ruled KRA unfairly dismissed an employee by ignoring its own disciplinary rules, converting the dismissal to normal termination with pay and benefits.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent flouted its own Code in the internal disciplinary proceedings
Yes. The respondent lifted the criminal charges in blanket form instead of framing its own charges as required by section 3.2.2; the appellant of grade KRA 12 fell outside the internal disciplinary committee's jurisdiction under sections 3.3.1 and 3.3.2, the proper forum being section 6(6)(c) of the KRA Act; and his statutory appeal was never determined.
The Code bound both employer and employee. Where the employer intended the findings of internal investigations to form part of the accusations, it was obligated to comply with sections 3.2.1 to 3.2.5 of the Code, framing charges reflective of the specific violations with penalties. The minutes did not disclose the panel's composition, and the failure to process the appeal breached sections 3.4.1, 3.4.3 and 3.4.6.
Whether the letter of dismissal was validly authenticated by Mrs. L.M. Malinda
No. Delegation under section 11(4) of the KRA Act required a gazette notice, and section 13(5) only permitted an appointed Commissioner to attend Board meetings without a vote; no delegation to sign dismissal letters was demonstrated.
The court construed sections 11(4) and 13(5) of the KRA Act together: the donee's power under section 13(5) is limited to attending Board meetings. For the signature to be valid, it had to be shown that Malinda was an officer under section 11(1) with delegated powers through a gazette notice. That was not demonstrated, so the authentication was vitiated and, violating section 3.3.3 of the Code, was invalid, null and void.
Whether the respondent had valid reasons for suspending and dismissing the appellant
Even if the alleged breach of reporting instructions amounted to gross misconduct, due process under the Code had to be followed; the alleged breach was never brought to the appellant's attention or made part of the disciplinary proceedings, so the dismissal was unlawful and unfair.
The employer's loss of confidence could not excuse non-compliance with the Code both parties subscribed to. Nothing on the record showed the reporting-instructions breach was put to the appellant or included in the disciplinary proceedings. Independently, the dismissal preceded the acquittal and rested on internal investigations, but the process defects fatal to the dismissal stood regardless of the substantive reasons.
Mode of assessment of the remedy where the dismissal is converted to normal termination
Rather than assess damages itself or remit without guidance, the court remitted to the ELRC with specific guidelines on the heads of award, following the approach in Kenya Ports Authority v Silas Obengele.
Neither party addressed the applicable repealed statutes (Employment Act Cap 226 and Trade Disputes Act Cap 234) governing assessment for a 2003 cause of action, and the contract governing the appellant's terms was not availed. The successful appellant was nonetheless entitled to a remedy, so the court adopted the Obengele approach of remitting with guidelines: notice pay, four months' compensation, salary during suspension, and full terminal benefits.
Legal principles established
#- An employer who elects to discipline an employee under its own internal Code must strictly comply with the procedural provisions of that Code; failure to frame its own charges, to empanel the properly constituted disciplinary organ, and to process a lodgement appeal renders the dismissal unlawful and unfair.
- A dismissal letter signed by an officer without delegated authority under section 11(4) of the KRA Act, evidenced by gazette notice, is invalid, null and void, rendering the dismissal ineffective.
- The burden of proof for an alleged breach of a contractual obligation is on a balance of probability, placed on the party asserting the facts, per sections 107, 108, 109 and 112 of the Evidence Act.
- On a first appeal the Court re-appraises the record and draws its own conclusions, in the nature of a retrial, but interferes with findings of fact only where there is no evidence to support a conclusion, the judge failed to properly appreciate the evidence, or the trial court plainly went wrong.
Court orders
#- 1.A declaration that the dismissal of the appellant from the employment of the respondent effective from 7th July, 2004 was unlawful and unfair
- 2.The dismissal is reversed and converted to a normal termination with full terminal benefits
- 3.The matter is remitted back to the ELRC for assessment of the award (salary in lieu of notice; 4 months' salary as compensation for unlawful and unfair termination; salary from suspension on 7th July 2003 to dismissal on 7th July 2004 if not already paid; full terminal benefits as per the contract)
- 4.The claim for special damages of Kshs. 7,129,728.00, salary incremental credits and general and exemplary damages is disallowed
- 5.Interest on the sums awarded at court rates from 1st July, 2014
- 6.The appellant shall have costs of both this appeal and the Court below
- On appeal from
- Industrial Court of Kenya at Nairobi (now the Employment and Labour Relations Court)
- Cause No. 936 of 2012
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court's appellate jurisdiction, with re-appraisal mandate under Rule 29(1) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bramuel Dibondo Musundi v Kenya Revenue Authority", Case Analysis (2018). Civil Appeal No. 358 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/582/eng@2018-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.