John Charo Ngumbao v Amani Tiwi Beach Resort [2017] KECA 13 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that even justified dismissal becomes unfair when the employer skips the mandatory hearing procedure, though compensation stayed modest.
What this practically means
#Executive summary
#Key legal issues
#Scope of appeals from the Employment and Labour Relations Court
Appeals are no longer restricted to questions of law following repeal of section 17(2) of the Industrial Court Act with effect from 8 December 2014
The Statute Law (Miscellaneous) Amendments Act (No. 18 of 2014), which renamed the Industrial Court as the Employment and Labour Relations Court, also repealed section 17(2) of the Industrial Court Act which had restricted appeals to matters of law only. Accordingly, appeals filed after that date are not so confined, and the respondent's reliance on Rift Valley Railways v Kiya Kalakhe Boru was misplaced.
Validity of the grounds for summary dismissal
The respondent had genuine grounds justifying summary dismissal, but erred in failing to comply with the procedural requirements of section 41 of the Employment Act
Under section 43(1), the employer bears the onus of proving the reasons for termination. The learned judge, who saw and heard the witnesses, preferred the respondent's version over the appellant's bare denial of receipt of the complaint emails and termination letter. That finding of credibility could not be interfered with absent misapprehension of the evidence or wrong principle. However, procedural fairness under section 41 was not accorded.
Adequacy of the compensation awarded
The award of one month's salary was a proper exercise of discretion and did not warrant interference
Section 49 remedies are discretionary, guided by the 13 considerations in section 49(4). The learned judge considered the appellant's gross misconduct and contribution to his termination, his short service of five months, and found a 12-month award disproportionate to the economic injury from denial of procedural justice. The Court of Appeal will not disturb a discretionary award merely because it might have made a higher one.
Costs
The order that each party bear its own costs was a proper exercise of judicial discretion
Under section 12(4) of the Labour and Employment Court Act and rule 29 of the Employment and Labour Relations Court (Procedure) Rules, 2016, costs are awarded as the court considers just. Costs do not invariably follow the event; the appellant only partly succeeded due to the respondent's procedural lapses, and the judge's discretion was properly founded on facts.
Legal principles established
#- Since 8 December 2014, appeals to the Court of Appeal from the Employment and Labour Relations Court are no longer confined to issues of law only
- Section 43(1) of the Employment Act places the onus on the employer to prove the reasons for termination; failure to prove them renders the termination unfair
- Remedies under section 49 of the Employment Act are discretionary, guided by the considerations in section 49(4)
Court orders
#- 1.The appeal is dismissed
- 2.Each party to bear its own costs
- On appeal from
- Employment and Labour Relations Court at Mombasa
- ELR CC No. 221 of 2014
- Jurisdiction invoked
- First appeal from the Employment and Labour Relations Court pursuant to the Employment and Labour Relations Court Act as amended by the Statute Law (Miscellaneous) Amendments Act (No. 18 of 2014), appeals no longer confined to questions of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Charo Ngumbao v Amani Tiwi Beach Resort [2017] KECA 13 (KLR)", Case Analysis (2017). Civil Appeal No. 61 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/13/eng@2017-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.