National Transport & Safety Authority v Nthiga (Appeal E243 of 2022) [2024] KEELRC 2830 (KLR)
The bottom line
#A Kenyan employer's appeal failed because it could not prove an employee submitted a forged degree certificate, so his reinstatement with full back pay stands.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial magistrate erred in finding that the Respondent was unfairly terminated
- 2.Whether the learned Magistrate erred in ordering reinstatement of the Respondent and awarding him unpaid salary from the date of termination to the date of reinstatement
Key legal issues
#Whether the employer had valid and fair reasons to dismiss the Respondent for submitting a forged degree certificate
No. The employer failed to prove the Respondent supplied the forged certificate or that a degree was a requirement for the position he held.
The confirmation letter did not specify the Respondent's designation; payslips described him as Enforcement Officer II, not Graduate Trainee. The employer, as custodian of employment records under section 74 of the Employment Act, refused to produce the CV which would have shown his qualifications. The forgery report was dated February 2018 yet the show cause letter issued only in January 2020. The court agreed the trial court was correct that it was not clear who supplied the certificate.
Whether the disciplinary procedure followed was fair
No. The Respondent was not furnished with requested documents including his CV to prepare for the hearing.
Procedural fairness under section 41 required an opportunity to prepare and respond. The Appellant failed to supply the CV requested during the disciplinary proceedings, disadvantaging the Respondent. Further, since the reasons for termination were not valid, the hearing was merely a formality to sanctify the Appellant's invalid actions.
Whether reinstatement and unpaid salary were appropriate remedies
Yes. Reinstatement was available and appropriate; reinstatement carries the employee's full benefits including unpaid salary.
Under section 49(3)(a) as read with section 49(4)(c), reinstatement is available, and under section 12(3)(vii) of the ELRC Act the claim for reinstatement is available within three years of termination. The termination was in January 2020 and judgment in 2022, so the trial court was justified. Upon reinstatement the employee is reinstated without loss of benefits.
The Appellant's counterclaim for reimbursement of salaries and medical premiums
Dismissed. It was improperly pleaded and failed because the reinstatement was upheld.
The Appellant filed a replying affidavit and counterclaim rather than a response and counterclaim, and the reimbursement claim was not specifically pleaded at trial. On the merits, the counterclaim could not stand once the court upheld the trial court's order reinstating the Respondent with benefits.
Legal principles established
#- A first appellate court must re-evaluate, re-assess and re-analyse the evidence on the record and determine whether the conclusions reached by the trial court should stand
- For a termination to be fair there must be both substantive and procedural fairness, and the employer bears the burden of justifying the grounds of termination
- The employer as custodian of employment records bears consequences of failing to produce employment documents such as the employee's CV
Court orders
#- 1.The appeal is dismissed with costs
- 2.The trial court's judgment reinstating the Respondent and ordering payment of unpaid salary from the date of termination to the date of reinstatement is upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (ELRC subordinate court)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's judgment (appeal against judgment delivered 4th July, 2022)
Relief refused
#Setting aside of the trial court judgment and dismissal of the Respondent's suit
The court upheld the trial court's finding that the termination lacked valid and fair reasons and that the procedure was unfair
Reimbursement of Kshs. 3,593,324/- back pay paid to the Respondent
Reinstatement with benefits was upheld, so no refund of back pay could issue
Counterclaim for reimbursement of Kshs. 4,335,996/- salaries and Kshs. 497,000/- medical premium
The counterclaim was not specifically pleaded at the trial and failed on the merits
Costs
The appeal is dismissed with costs to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the upshot this Appeal is found without merit and the same is hereby dismissed with costs.
The Court is in agreement with the trial court that the Appellant did not have valid and fair reasons to dismiss the Respondent as the reasons for termination were not fair within the meaning of sections 43 and 45 of the Employment Act.
The court therefore agrees with the trial court that it was not clear who supplied the alleged forged degree certificate to the Appellant and if the degree was even a requirement for employment.
This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way
whenever the court orders for reinstatement the same follows that the employee is to be reinstated without loss of his/her benefits.
Issues in the judgment
#The judgment inconsistently identifies the trial magistrate, attributing the judgment under appeal to two different magistrates
The prayer for reimbursement of the medical premium is stated inconsistently as Kshs. 497,000,000 and Kshs. 497,000
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Transport & Safety Authority v Nthiga (Appeal E243 of 2022) [2024] KEELRC 2830 (KLR)", Case Analysis (2024). Not stated in judgment (Memorandum of Appeal dated 23rd November, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2830/eng@2024-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.