Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment (Memorandum of Appeal dated 23rd November, 2023)· [2024] KEELRC 2830 (KLR)

National Transport & Safety Authority v Nthiga (Appeal E243 of 2022) [2024] KEELRC 2830 (KLR)

Employment and Labour Relations Court
14 November 2024
3,858 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

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

#
This was a first appeal to the Employment and Labour Relations Court against a magistrate's judgment which had entered judgment for the employee-Respondent, ordering his reinstatement and payment of unpaid salary from the date of termination to reinstatement. The employer-Appellant, which had dismissed the Respondent in July 2020 on the ground that he had submitted a forged Makerere University degree certificate, sought to set aside that judgment and also pursued a counterclaim for reimbursement of back pay, salaries and medical premiums. The court identified two issues: whether the trial magistrate erred in finding the termination unfair, and whether reinstatement with unpaid salary was warranted. Applying sections 43, 45 and 47(5) of the Employment Act, the court held the burden of justifying termination lay on the employer and that both substantive and procedural fairness are required. It found the employer had not proved that the Respondent supplied the forged certificate or that a degree was a requirement for his position, noting his payslips described him as Enforcement Officer II, the confirmation letter did not specify his designation, the employer refused to produce the CV it held under section 74, and there was a two-year delay between the forgery report and the show cause letter. Procedural fairness was also breached by failure to supply requested documents. The counterclaim failed as improperly pleaded and on the merits. The appeal was dismissed with costs.

Key legal issues

#
01

Whether the employer had valid and fair reasons to dismiss the Respondent for submitting a forged degree certificate

Holding

No. The employer failed to prove the Respondent supplied the forged certificate or that a degree was a requirement for the position he held.

Reasoning

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.

p. 7
02

Whether the disciplinary procedure followed was fair

Holding

No. The Respondent was not furnished with requested documents including his CV to prepare for the hearing.

Reasoning

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.

p. 7
03

Whether reinstatement and unpaid salary were appropriate remedies

Holding

Yes. Reinstatement was available and appropriate; reinstatement carries the employee's full benefits including unpaid salary.

Reasoning

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.

p. 8
04

The Appellant's counterclaim for reimbursement of salaries and medical premiums

Holding

Dismissed. It was improperly pleaded and failed because the reinstatement was upheld.

Reasoning

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.

p. 8

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. 1.The appeal is dismissed with costs
  2. 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
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)

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.