By The Weekly Vision
A British Army Training Unit in Kenya (BATUK) has lost its appeal case at the Court of Appeal in Nyeri. Three Appeal Court Judges, W. Karanja, L. Kimaru, and A.O. Muchelule ruled that the appeal lacked merit and that the lower court’s decision to compensate a former (BATUK) employee, Joseph Kairu Mutahi, stands. The ruling is dated November 24, 2023.
Mr Mutahi was employed as a casual worker with the British military unit in Kenya between 1984 and 2002 and was later permanently employed on October 1, 2002, as FMA supervisor of LAIKIPIA AIR BASE (EAST) (LAB(E), earning a gross salary of Ksh. 122,868. He had worked at various BATUK camps, including Nanyuki Airstrip, Nanyuki Showground, Turaco Farm, and Laikipia Airbase (lab).
He worked until February 24, 2016, when he was suspended from work on allegations of sexual harassment and intimidation at the workplace. He was again suspended on March 3rd, 2016 for the same reason, and this led to his invitation for an investigatory hearing on March 15th, 2016, which did not take place.
He acknowledges having attended the disciplinary hearing on June 10, 2016, and on July 14, 2016, he was terminated from employment. His terminal dues, amounting to Ksh. 1,216,630, were deposited in his account on August 10, 2016, and he was issued a certificate of service on August 24, 2016.
Aggrieved by his termination, he moved to court by way of a memorandum of claim dated November 4, 2016. He claimed that he was not accorded a fair hearing, leading to his unprocedural and unlawful termination from employment, contrary to the proviso to Section 49 of the Employment Act No. 11 of 2007. He prayed for general damages, emoluments, and contingencies for unfair and unlawful dismissal (gross salary of Ksh. 122,868 *12 months = 1,474,416).
Supervisory allowance as per standing order 103 between October 2008 and November 2015 is 10% of the basic salary per month (=86 months * 12,286 = 1,056,664). Unpaid gratuity as per clause 50(d) of standing order 103 = Ksh. 5,897,664. One month of pay in lieu of notice, Ksh. 122,868.00
Total Ksh.8,551,612.
Less than Ksh. 1,216,630 was paid, making a total of Ksh. 7,334,982. Regarding compensation, the court found that from the evidence presented, the respondent was a reliable and dependable employee, and he was, therefore, awarded the maximum compensation under Section 49(1)(C) of the Employment Act, a sum of Ksh. 1,474,416.00.
It was held that the respondent had proved his claim on a balance of probability, and he was, therefore, awarded 50% of his basic pay of Ksh. 122,868 for 19 years of casual service, totalling Ksh. 1,167,246.00.
The ruling reads, “The respondent (appellant herein) is to pay the claimant Ksh. 2,997,979.00 by February 1, 2018, failing which interest at court rates is to be payable thereon from the date of this judgement until full payment.” The final judgement reads, “We find no fault with the learned judge’s decision. Accordingly, we find this appeal to be devoid of merit and dismiss it accordingly.”
