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
#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
- 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.