Geoffrey Gikonyo Mathu v Intex Construction Company Ltd [2017] KECA 688 (KLR)
The bottom line
#Kenya's Court of Appeal ruled an employer cannot fire a driver before a traffic conviction is final, and must hold a proper hearing first.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent had valid reason to summarily dismiss the appellant
The respondent did not genuinely believe in the appellant's culpability at the time of dismissal, so it had no valid reason for summary dismissal
Section 43 requires the employer to prove reasons it genuinely believed to exist at termination. The dismissal letter dated 4th October 2012 relied on the accident of 3rd October 2012, but the appellant's alleged careless driving had not been judicially determined; under Section 47A of the Evidence Act a conviction becomes conclusive evidence of guilt only after expiry of the appeal period. Since the appellant took plea in the traffic case only on 12th November 2012, no conclusive finding existed on 4th October 2012 and the employer could not have genuinely believed in culpability.
Whether the appellant was given a fair hearing before dismissal as required by Section 41 of the Employment Act
The appellant was not given the hearing mandated by Section 41; his written account to a supervisor was not a substitute for a hearing
Section 41(1) and (2) obliges the employer to explain the reasons for contemplated termination in a language the employee understands, allow a chosen companion, and hear and consider representations. The appellant was merely asked to write an account of events and was handed a dismissal letter on delivering it. There was no specific charge, no notice to show cause, and no findings demonstrating that the employer directed its mind to the case. Following Kenfreight, Hema Hospital and CMC Aviation, the hearing requirement is mandatory and was flagrantly disregarded.
Whether summary dismissal was available on the facts
Summary dismissal is reserved for gross misconduct fundamentally breaching contractual obligations; the recognised grounds under Section 44(4) were not established here
Section 44 reserves summary dismissal for conduct constituting a fundamental breach of contractual obligations, and only gross misconduct entitles an employer to invoke it. The court catalogued the statutory grounds including wilful neglect, failure to obey lawful commands, and criminal offences against the employer, noting the list is not exhaustive since Section 44(4) permits employers to expand the grounds. On the facts, the appellant had alerted his supervisor to the defective brakes and drove under orders fearing reprisals.
Standard of appellate evaluation of evidence on a first appeal
As a first appellate court, the Court re-evaluated the evidence afresh to reach its own conclusion, making due allowance for not having seen or heard the witnesses
Because the appeal was a first appeal, the court was obliged to reconsider the evidence adduced before the trial court and draw its own conclusions, subject to the established caution that it had neither seen nor heard the witnesses, as stated in Selle v Associated Motor Boat Co Ltd. The appellant's unchallenged testimony, the respondent having not participated after filing its reply, formed the basis of the findings.
Legal principles established
#- An employer who relies on a criminal conviction to justify dismissal cannot do so before the conviction has become conclusive under Section 47A of the Evidence Act; a conviction not yet rendered is not conclusive proof of guilt at the time of dismissal
- Under Section 43 of the Employment Act, the employer must prove reasons for termination it genuinely believed to exist at the time of termination; failing that the termination is unfair
- Compliance with Section 41 of the Employment Act is mandatory in all terminations, including summary dismissal; a written explanation demanded by a supervisor is in addition to, not a substitute for, the hearing the section envisages
- Valid reasons alone do not validate a dismissal effected without the hearing mandated by Section 41(2); want of hearing independently vitiates the dismissal
Court orders
#- 1.Judgment of the Employment and Labour Relations Court set aside
- 2.Judgment entered for the appellant in terms of prayers (a), (b), (c) and (d) of the Memorandum of Claim
- 3.General damages under prayer (b) pegged at eight months' salary
- 4.Appellant awarded costs of the appeal
- On appeal from
- Employment and Labour Relations Court at Nyeri
- ELRC Cause No. 68 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court (statutory first appeal; no Article 163(4)(a) basis stated)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Geoffrey Gikonyo Mathu v Intex Construction Company Ltd [2017] KECA 688 (KLR)", Case Analysis (2017). Civil Appeal No. 67 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/688/eng@2017-03-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.