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ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 2339 (KLR)

Isaiah Nyakoe v Kenya Wildlife Service [2018] KEELRC 2339 (KLR)

Employment and Labour Relations Court
2 March 2018
MNMathews N. NdumaMOMaureen Onyango
1,649 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenya Wildlife Service ranger fired over rhino horn theft won compensation because his employer fired him on suspicion without a fair hearing.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a ranger from 2009 and serving as a database intelligence officer, was interdicted on half pay in October 2009 following the loss of two rhino horns from a strong room at Kifaru Court, and was removed from service with effect from 1st March 2010 on the basis of vague 'association' in activities prejudicial to good order and discipline. He sought reinstatement or, alternatively, twelve months' salary as compensation for wrongful and unfair termination. He denied involvement, noting the two key custodians of the armoury were court martialled and dismissed while he was never court martialled nor called before a disciplinary panel, though he later appeared before the Appeal Board which upheld the removal. The Respondent admitted the employment particulars and the failure to issue a certificate of service but called no witnesses, relying only on its pleadings and annexures. The court framed two issues: validity of reason and fairness of procedure, and entitlement to reliefs. Relying on section 47(5) of the Employment Act, it held the burden shifted to the Respondent, whose pleadings could not rebut sworn testimony. It found the termination violated sections 41, 43 and 45 of the Employment Act and the KWS disciplinary code. Reinstatement was refused because the employer no longer trusted the Claimant; compensation of five months' gross salary (Kshs.107,500) was awarded under section 49(1)(c), with interest and costs. A cited authority, Mary Chemweno Kiptui v Kenya Pipeline Co. Ltd, informed the compensation approach.

Key legal issues

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01

Whether the termination was for a valid reason and through fair procedure

Holding

The termination was wrongful, lacking a valid reason and conducted contrary to fair procedure, violating sections 41, 43 and 45 of the Employment Act and the KWS disciplinary code

Reasoning

The termination letter gave no specific reason, only vague 'association' in prejudicial conduct. The culprits were identified and court martialled but the Claimant was not, and he was never called before the disciplinary panel. The Respondent called no witness, so pleadings and annexures could not rebut the Claimant's sworn testimony. The appeal board's hearing did not cure the procedural omission as his fate had effectively been sealed.

p. 2
02

Whether the Claimant was entitled to compensation and in what measure

Holding

The Claimant was entitled to compensation under section 49(1)(c) of the Employment Act; five months' gross salary was awarded, reinstatement being refused

Reasoning

Terminal benefits had been paid (a mitigating factor), the Claimant served six years with no disciplinary record, but he contributed to the suspicion leading to termination. Reinstatement was refused because the employer no longer trusted him. Following Mary Chemweno Kiptui v Kenya Pipeline Co. Ltd, five months' gross salary (Kshs.21,500 per month) was awarded, totalling Kshs.107,500.

p. 3

Legal principles established

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  • Under section 47(5) of the Employment Act the claimant bears the initial onus of showing a prima facie case of wrongful termination, whereupon the onus shifts to the employer to justify the termination under section 43
  • A party that fails to call a witness cannot rebut sworn testimony through pleadings and annexures, which do not constitute admissible evidence
  • Mere suspicion is not a sufficient basis to remove an officer from service

Court orders

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  1. 1.Kshs.107,500 being equivalent of five (5) months gross salary in compensation for the unlawful termination of employment
  2. 2.The award is payable with interest at court rates from date of judgment till payment in full
  3. 3.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Actsection 47(5)
  • Employment Actsection 43
  • Employment Actsections 41, 45
  • Employment Actsection 49(1)(c) as read with section 49(4)

Cases cited (1)

  • Mary Chemweno Kiptui v Kenya Pipeline Co. Ltd
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 45, 47(5), 49) in a first-instance unfair termination claim

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, "Isaiah Nyakoe v Kenya Wildlife Service [2018] KEELRC 2339 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2339/eng@2018-03-02

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