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Court of AppealPartially AllowedCivil Appeal No. 134 of 2018

Kenya Ports Authority & another v Joseph Makau Munyao & 4 others [2019] KECA 498 (KLR)

Court of Appeal of Kenya
11 July 2019
7,973 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that employers must follow their own disciplinary procedures exactly, and slashed the workers' damages because no clear basis justified the original award.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Visram, Karanja & Koome, JJ.A) heard the Kenya Ports Authority's appeal and the employees' cross appeal against Radido, J.'s judgment of 19th February 2016 in the Employment and Labour Relations Court at Nakuru, arising from disciplinary sanctions imposed on five gantry operators over a perceived go slow on 29th and 30th March 2011. The Court held that the employer's disciplinary handbook bound it contractually, and since the handbook permitted written warnings only as punishment after a disciplinary hearing, issuing warning letters before any hearing was procedurally unfair. The charges also mutated across successive letters, denying the employees proper notice. Applying the burden under Section 47(5) of the Employment Act, the Court found the employer had reasonable grounds to believe the 2nd–4th respondents, who were on active duty, participated in the go slow, but had no reasonable basis for sanctioning the 1st respondent (on standby) or the 5th respondent (on leave), whose alleged incitement rested on mere suspicion. The order reinstating the 1st and 5th respondents was set aside: they had been redeployed, not terminated, and the employer had since restructured, making reinstatement impracticable. The award of Kshs.800,000 general damages to each respondent was set aside for want of any stated basis and substituted with four months' gross salary for the 1st and 5th respondents and one month's gross salary for the 2nd–4th respondents as at 30th January 2012. The refund of surcharges was upheld, the surcharge contravening clause K.11(c) of the handbook, but other special damages were refused. The cross appeal was dismissed and each party ordered to bear its own costs at the ELRC, in the appeal and the cross appeal. The appeal substantially succeeded.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the disciplinary procedure adopted by the 1st appellant, including issuance of warning letters before a hearing, was procedurally fair
  2. 2.Whether the 1st appellant established valid and reasonable grounds for the disciplinary sanctions imposed on each respondent
  3. 3.Whether the order reinstating the 1st and 5th respondents as gantry operators was appropriate and within the trial court's jurisdiction
  4. 4.Whether the award of Kshs.800,000 general damages to each respondent was justified and properly assessed
  5. 5.Whether the respondents were entitled to refund of the surcharged amounts and other special damages
  6. 6.Whether the trial court properly exercised its discretion on costs

Key legal issues

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01

Procedural fairness of pre-hearing warning letters

Holding

The warning letters issued to the 1st–4th respondents before any hearing were warnings under clause K.9 of the disciplinary handbook, which prescribes warnings only as punishment after a disciplinary hearing; issuing them at the outset was unfair

Reasoning

The handbook contains no provision for issuing warning letters at the onset, prior to hearing and determining charges. The letters were on their face warnings within clause K.9. The procedure adopted was a hybrid of procedures for offences warranting and not warranting dismissal, leaving even the employer's Human Resource Officer unable to state which procedure applied. Charges also mutated across the warning, show-cause and interdiction letters, denying the employees notice of the case against them contrary to the irreducible minimum of a fair hearing.

p. 6
02

Substantive justification of the sanctions

Holding

There was a go slow, but the 1st appellant had no reasonable grounds to believe the 1st and 5th respondents participated; the 2nd–4th respondents were on active duty, so belief in their participation was not unreasonable

Reasoning

Applying the Selwyn threefold test with Sections 43 and 45 of the Employment Act, the employer had to show genuine belief on reasonable grounds after reasonable investigation. The duty roaster showed the 1st respondent on standby for the third shift, and Reginald's claim that he was called to step in was unsupported, the disciplinary proceedings not having been produced. The 5th respondent's presence at the terminal while on leave rested on mere suspicion, and the alleged altercation was uncorroborated. The 2nd–4th respondents were on active duty during a proven go slow.

p. 7
03

Reinstatement versus redeployment

Holding

The order reinstating the 1st and 5th respondents was erroneous: they had not been terminated but redeployed, and the court failed to consider practicability in light of the appellant's restructuring

Reasoning

Reinstatement under the employment statutes envisages unfairly or wrongfully terminated employees; here the respondents were redeployed within the organisation. Even so, the trial court was obliged to assess whether restoring them as gantry operators was practicable. Evidence of a 2012 restructuring translating the 1st respondent to Assistant Administrative Officer made reinstatement infeasible by the date of judgment. The appellants' limitation objection based on Section 12(3)(vii) of the ELRC Act was thus unnecessary to decide, the order failing on practicability grounds.

p. 8
04

Quantum of damages for unfair labour practices

Holding

The award of Kshs.800,000 to each respondent was set aside because no basis for the assessment was given; substituted with 4 months' gross salary for the 1st and 5th respondents and 1 month's gross salary for the 2nd–4th respondents

Reasoning

Damages are compensatory and employment remedies must be proportionate to economic injury, not a vehicle for unjust enrichment. The trial judge gave no explanation of how the figure was reached, permitting appellate interference under the Kemfro Africa principles. Taking into account the Section 49 Employment Act parameters, respondents exonerated of the misconduct receive 4 months' gross salary, while those reasonably believed to have participated receive 1 month's gross salary for the procedural unfairness alone.

p. 8
05

Refund of surcharges and other special damages

Holding

The refund of surcharged amounts was upheld as there was no pleaded or proved basis for the surcharge and it contravened clause K.11(c) of the handbook; other special damages were properly refused

Reasoning

Special damages must be specifically pleaded and proved. The employer's claim of financial loss from the go slow was never quantified by any witness. Clause K.11(c) forbids surcharges combined with other disciplinary action, so imposing the surcharge alongside warning, probation and redeployment was contrary to the employer's own procedure. Claims for gantry-operator allowances, an increment and a uniform detergent allowance failed because the allowances were payable only when on duty and the entitlements were unproved.

p. 9
06

Costs

Holding

Both sides partially succeeded, so each party should bear its own costs at the trial and on appeal

Reasoning

Costs follow the event but remain subject to the judiciously exercised discretion of the court accommodating the special circumstances of the case, as articulated by the Supreme Court in Jasbir Singh Rai. Here the respondents partially succeeded on their claim and the appellants partially succeeded in their defence; given the continuing employment relationship, an order that each party bear its own costs at both levels was appropriate.

p. 9

Legal principles established

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  • Where a disciplinary procedure is contractually agreed, an employer is bound to comply strictly with it, and failure to observe its own disciplinary procedures may amount to repudiation of contract
  • Where an unfair disciplinary sanction other than termination is alleged, the court must interrogate both substantive and procedural fairness, with the employer bearing the burden under Section 47(5) of the Employment Act
  • An employer must establish valid reasons for disciplinary action on reasonable grounds following reasonable investigation, per the Selwyn threefold test read with Sections 43 and 45 of the Employment Act
  • Before directing reinstatement to a previous position, a court must consider the practicability of reinstatement in light of the parties' circumstances, including any restructuring of the employer
  • A surcharge under an employer's disciplinary handbook may not be imposed in combination with other disciplinary action

Court orders

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  1. 1.Set aside the order directing the reinstatement of the 1st and 5th respondents to their previous positions as gantry operators
  2. 2.Set aside the award of Kshs.800,000 damages for unfair labour practices to each respondent and substitute an award equivalent to 4 months gross salary for the 1st and 5th respondents and 1 month gross salary for the 2nd, 3rd and 4th respondents, calculated at the gross salary as at 30th January, 2012
  3. 3.Set aside the order of costs at the ELRC and substitute an order that each party bears its own costs at the ELRC
  4. 4.Dismiss the cross appeal
  5. 5.Direct that each party bears its own costs in this appeal and cross appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
Employment and Labour Relations Court at Nakuru
Petition No. 11 of 2015
Jurisdiction invoked
First appeal under the Court of Appeal Rules (appellate jurisdiction over the Employment and Labour Relations Court)

Relief refused

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Reinstatement of the 2nd, 3rd and 4th respondents as gantry operators

The issue was raised in submissions without leave of the Court and was not a ground of appeal or cross appeal

p. 8

Special damages for allowances, salary increments and bonuses allegedly lost as gantry operators

The allowances were payable only to gantry operators when on duty, and the respondents had not worked as gantry operators since interdiction; the claimed entitlements were not proved

p. 9

The respondents' cross appeal in its entirety

Lacked merit; the trial court's findings on warnings, surcharge refund and failure to award special damages were substantially upheld

p. 9

Costs

Each party to bear its own costs at the ELRC, in this appeal and in the cross appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Where there is contractually agreed disciplinary procedure, an employer is bound to comply with those procedures. A failure by an employer to observe its own disciplinary procedures may amount to repudiation of contract…
p. 6Contractually agreed disciplinary procedures
Due process which entails the right to a fair hearing is a fundamental aspect of the rule of law.
p. 6Right to a fair hearing in disciplinary processes
the question is not whether or not the trial court or this Court is satisfied that the respondents were guilty but whether it is satisfied that the 1st appellant had reasonable grounds for believing that the respondents had committed the offences and had acted reasonably in disciplining them in the manner it did.
p. 6Employer's burden of proving valid reasons
Practicability is capability of being carried out in action, feasibility or the potential for the re-imposition of the employment relationship to be done or carried out successfully.
p. 7Practicability of reinstatement
employment remedies must be proportionate to the economic injuries suffered by the employees. These remedies are not aimed at facilitating the unjust enrichment of aggrieved employees; they are meant to redress economic injuries in a proportionate way.
p. 8Proportionality of employment remedies
a. We hereby set aside the order directing the reinstatement of the 1st and 5th respondents to their previous positions as gantry operators.
p. 9Final orders – reinstatement set aside
b. We hereby set aside the award of damages for unlawful labour practices of Kshs.800,000 to each respondent and substitute the same with an award equivalent to 4 months gross salary in favour of the 1 st and 5th respondents and I month gross salary for the 2nd, 3rd and 4th respondents.
p. 9Final orders – damages substituted
We find that the cross appeal lacks merit and is hereby dismissed. Bearing in mind that this is an employment dispute between parties who are still subject to an employer/employee relationship, we direct that each party bears its own costs in this appeal and cross appeal.
p. 9Final orders – cross appeal dismissed and costs

Issues in the judgment

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minor

Trial decision described as converted from a petition into a re-amended plaint, yet the judgment quotes the trial orders under the heading of the 'Cause'; the record does not clarify the final procedural characterisation

minor

The judgment states the trial court declined reinstatement jurisdiction analysis but the appellants' first ground of appeal attacked reinstatement for lapse of the statutory 3-year limitation period; the appellate court resolved the issue on practicability without expressly determining the limitation argument

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kenya Ports Authority & another v Joseph Makau Munyao & 4 others [2019] KECA 498 (KLR)", Case Analysis (2019). Civil Appeal No. 134 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/498/eng@2019-07-11

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