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KENYA: CELEBRATING A LANDMARK VICTORY AT THE COURT OF APPEAL: THE CASE OF PAUL WANYAGAH VS. MARKET DEVELOPMENT TRUST T/A KENYA MARKERS TRUST

By Cecil Kuyo,George Ndung'u Thursday, August 10, 2023
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We are pleased to share with you a legal triumph at the Court of Appeal that exemplifies the dedication and expertise of the Bowmans legal team. In the recent case of Paul Wanyagah vs. Market Development Trust T/A Kenya Markers Trust, Bowmans’ involvement as counsel for the Respondent, the Market Development Trust, played a pivotal role in securing a favourable outcome.

Introduction

The Court of Appeal in dismissing the appeal filed by the Appellant, Paul Wanyagah, considered whether his termination was fair as determined by the Employment and Labour Relations Court (ELRC).

Brief facts

The Appellant was employed by the Respondent as its Chief Executive Officer between March 2014 to January 2016. He was invited to a disciplinary meeting based on the findings of an Audit Report that had been conducted by the Respondent’s donor.

The Appellant stated that he was invited to a disciplinary hearing on 24 October 2016 through a letter but was subsequently informed through email correspondence that the correct date for the meeting was 25 October 2016. The Appellant opted to attend the hearing on the wrong date, 24 October 2016, and failed to appear on 25 October 2016. After trying and failing to reach him, the Respondent conducted the hearing without the Appellant and decided to terminate his employment.

ELRC determination

The Appellant’s suit at the ELRC alleged unfair termination by the Respondent.

The ELRC found that the termination was substantively fair. The ELRC also found that the Appellant was given a reasonable opportunity to be heard, having received notice of the meeting on 25 October 2016. By failing to seek clarification from the Respondent, the Appellant squandered his chance and right to a fair hearing.

Findings of the Court of Appeal

The Appellant filed an appeal at the Court of Appeal seeking to challenge the ELRC’s decision.

The Court of Appeal agreed with the ELRC and our submissions that the Appellant was given reasons why his employment could be terminated in the letter sending him on compulsory leave and his letter of termination which outlined his performance vis-a-vis the findings of the Audit Report. Since the allegations against him were aligned with his job description, the Court found that this satisfied reasons before termination under the Employment Act.

The Court noted that the Appellant was provided with documents he could rely on upon his request and further noted that he remained in possession of his work laptop from which he could access his emails and any of the documents he requested for the purpose of the disciplinary hearing. The Court found that the Appellant’s constant change in his demands for documents was intended to frustrate the disciplinary process, which could not be allowed in fair labour relations.

It was further determined that there was no evidence that the Appellant did not receive subsequent emails which indicated the correct date for the disciplinary meeting. The Court found that the Appellant was obligated to seek clarification on the correct date of the hearing since he was in constant communication with the Respondent’s Chairman.

The Court found that the Appellant having been given valid reasons for termination and being invited to participate in the disciplinary hearing which he declined, could not claim procedural and substantive unfairness before termination of the employment.

What it means for you

The Court of Appeal's examination of the employee's engagement with the disciplinary process emphasizes the need for employees to actively seek clarification and engage with proceedings initiated by the employer.

Effective communication, access to information, and proactive engagement are essential elements of procedural and substantive fairness in employment matters. Employees should actively participate, seek clarification, and utilize available resources to construct a well-founded defence to disciplinary processes.

Employers, on the other hand, should prioritize transparent communication, provide necessary documents, and ensure that the allegations that are the subject of the disciplinary process are relevant to job roles. By embracing these principles, both parties can contribute to a fair and just resolution of employment disputes.