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This article focuses on the judgment delivered by the Court of Appeal on 26th August 2019 in Civil Appeal No. 308 of 2016, Kenya Revenue Authority vs SKC & 3 Others. The judgment is interesting, to say the least, and worthy of some comment.

The facts

The Respondents (SKC & 3 Others) were engaged as Graduate Trainees by KRA. On 29th August 2007, they were said to have acted contrary to examination procedures and instructions by cheating during a Continous Assessment Test.

On 18th February 2008, they were informed that their results would be cancelled and that the KRA examination’s board would allow them to re-sit the CAT with a warning that any further examination irregularities would lead to disqualification.

On 10th September 2008, they were issued with a notice to show cause as to why disciplinary action should not be taken against them for not only cheating but also removing confiscated unauthorised materials from KRA’s lawful custody.

Their representations were found to be unsatisfactory and they were terminated for cheating and for removing confiscated unauthorised materials from KRA’s custody.

The court case

They claimed unfair termination in the then Industrial Court. They argued that the dismissal amounted to punishing them twice for the same mistake.

The Judge found that the Claimants were not entitled to compensation for their unfair termination as they were the “authors of their own misfortune”. However, and in a strange twist, he found that they were entitled to reinstatement.

KRA appeals to the Court of Appeal

KRA appealed. Amongst the grounds of appeal was that the judge erred in ordering reinstatement having found that the Claimants were guilty of misconduct.

The Court of Appeal found that the termination was lawful because of the Claimants’ misconduct, irrespective of the procedural flaws of the termination.

Analysis

It is true that KRA punished the trainees twice for the same offence which is wrong.

Their conduct ought to have been taken into account when considering the appropriate remedy if any.

In such a case, a Court is entitled to acknowledge that the termination was unlawful for failure to uphold due process but proceed to decline to award any remedy where the Claimant’s conduct is culpable. One of the factors which the Court is supposed to take into account when considering a remedy is the Claimant’s conduct – Section 49(4)(b) and (k) of the Employment Act, 2007.

In my view, it was wrong to order reinstatement after recognizing the Claimants’ culpability.

In my view, it was also wrong to find that the termination was lawful where due process was not followed – this is against Section 45 of the Employment Act, 2007 and the rule against double jeopardy.

The case is however useful

Because it makes it clear that an employee whose misconduct leads to termination, cannot profit from their misconduct on account of a flaw in the termination process.

***THE END***

About Anne Babu

Anne is an Advocate of the High Court of Kenya and the Founding Partner of Anne Babu & Co. She has practised employment law for close to 12 years and her employment law practice has been recognized by the prestigious Chambers & Partners. Anne cares about employers and their labour issues.

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