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Court of AppealDismissedCivil Appeal No. 57 of 2016· [2017] KECA 14 (KLR)

Kenya Ports Authority v Mary Saru Mwandawiro [2017] KECA 14 (KLR)

Court of Appeal
12 October 2017
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
4,812 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya Ports Authority lost its appeal because even a justified dismissal is unfair if the employee is never given a hearing before being fired.

What this practically means

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Executive summary

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The respondent, an accountant employed by Kenya Ports Authority from 1984, was translated to a supernumerary post in a 2012 restructuring. After unsuccessful appeals to be placed on other posts or retired on abolition of office, the Authority declared her appointment forfeited with effect from 1st August 2014 under section K.7(g) of its Disciplinary Handbook, on grounds of unauthorised absence exceeding ten days. The ELRC (Makau, J.) found her conduct warranted summary dismissal but that the dismissal breached the procedural requirements of section 41 of the Employment Act, awarding her 8 months' gross salary (Kshs.1,768,264.80) for unfair termination while rejecting her claims for loss of earnings. Both parties appealed. The Court of Appeal held that the respondent's own letter admitted absenteeism, that she could not declare herself redundant as only the Board could retire an employee on abolition of office, and that her discrimination claim lacked evidentiary support. However, the mandatory hearing requirements of section 41 had not been met despite the employer knowing her contacts, so the summary dismissal was unprocedural though warranted. Applying Gicheru v Morton, the Court found no basis to disturb the damages award. Both the appeal and cross appeal were dismissed, with each party bearing their own costs. The trial court's judgment was affirmed.

Key legal issues

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01

Whether the respondent's summary dismissal was lawful and fair

Holding

The dismissal was substantively warranted (the respondent admitted absenteeism by her letter) but procedurally unfair for breach of section 41 of the Employment Act.

Reasoning

The respondent's own letter admitted she had no duties and reported to no one, establishing absenteeism; redundancy did not lie because her salary and grade were unaffected and only the Board could retire on abolition of office. However, the employer never served a show cause letter or invitation to a hearing despite knowing her contacts, breaching mandatory section 41 procedure.

p. 6
02

Whether the claim of discrimination on medical status was proved

Holding

It was not; discrimination cannot be upheld without evidence.

Reasoning

The only basis was an alleged verbal statement by the Head of Finance; no evidence was tendered beyond counsel's submissions, so the trial judge was right to reject it.

p. 5
03

Whether the award of 8 months' gross salary should be disturbed

Holding

No; the award was a proper exercise of trial court discretion and no ground for appellate interference was shown.

Reasoning

Applying Gicheru v Morton, the Court found no wrong principle of law and no erroneous estimate of damages, so the award stands.

p. 6

Legal principles established

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  • An employer must accord an employee an opportunity to be heard under section 41 of the Employment Act even where summary dismissal for forfeiture is warranted; absence of the employee does not excuse the mandatory process.
  • Section 41 procedural requirements apply to summary dismissal as well as ordinary termination.
  • The burden of proving that a termination was fair rests on the employer; the employee need only assert unfair termination.
  • An appellate court will not interfere with a trial judge's award of damages unless the judge acted on a wrong principle or the award is an entirely erroneous estimate.
  • He who alleges discrimination or other facts must prove them (sections 107 and 108 of the Evidence Act).

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The cross appeal is dismissed
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 41(1)
  • Constitution of KenyaArticle 47(1) & (2)
  • Employment Actsections 41, 41(2), 43, 44(3), 44(4)(a), 45
  • Evidence Actsections 107 and 108
  • Kenya Ports Authority Disciplinary Handbook 2008section K.7(g), section K.8
  • Kenya Ports Authority Human Resource Manual 2011section B.16(K), section 2(h)

Cases cited (8)

  • Munyu Maina v. Hiram Gathiha Maina
    [2013] eKLR
  • Nyongesa & 4 others v. Egerton University College
    [1990] eKLR
  • Kiarie Wamutu v. Mungai Kiarie & Another
    [1982] eKLR
  • Judicial Service Commission v Gladys Boss Shollei & another
    [2014] eKLR
  • Selle v. Associated Motor Boat Co. Ltd
    (1968) EA 123
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
  • Kenfreight (EA) Limited v. Benson K Nguti
    [2016] eKLR
  • Gicheru V Morton and Another
    (2005) 2 KLR 333
On appeal from
Employment and Labour Relations Court at Mombasa
E & L.R.C.C. No. 306 of 2015
Jurisdiction invoked
Appeal under the Constitution and the Industrial Court Act as circumscribing this Court's jurisdiction (Judicial Service Commission v Gladys Boss Shollei)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Ports Authority v Mary Saru Mwandawiro [2017] KECA 14 (KLR)", Case Analysis (2017). Civil Appeal No. 57 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/14/eng@2017-10-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.