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Court of AppealPartially AllowedEldoret Civil Appeal No. 94 of 2017 (related appeal; judgment delivered at Mombasa)· [2021] KECA 140 (KLR)

Kosgei v Metkei Multi-Purpose Company Limited (Civil Appeal 95 of 2017) [2021] KECA 140 (KLR)

Court of Appeal of Kenya
19 November 2021
4,690 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal ruled that an employer who cannot prove an employee received disciplinary letters has unfairly terminated them, entitling the worker to compensation and costs.

What this practically means

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Executive summary

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The Court of Appeal allowed Edwin Kosgei's appeal against the Employment and Labour Relations Court at Nakuru, which had dismissed his unfair termination claim except for an award of Kshs. 32,000/= for accrued leave. The appellant, a milk tanker driver employed by the respondent on 23rd July 2012, was summarily dismissed by letter dated 10th February 2014 following a road traffic accident involving the respondent's vehicle on 9th December 2013, in which he was a co-driver. The Court framed five issues and held that the respondent failed to prove service of the show-cause and disciplinary hearing letters, which were sent to a postal address different from the one in the appellant's employment letter, with no certificate of posting or return of service. The mandatory dual requirements of section 41 of the Employment Act - explanation and hearing - were therefore not met, rendering the dismissal procedurally unfair. On justification, the Court found the respondent's evidence on desertion and refusal of alternative duties untenable: the attendance list covered the wrong period and contradicted the witness's testimony, and no consultation or written revision of duties under section 10 preceded the alleged refusal of new duties. The termination lacked valid and fair reason under section 45. The Court set aside the trial judgment, saved the accrued leave award, declared the termination unfair and unlawful, and ordered a certificate of service, one month's notice pay (Kshs. 16,000/=), four months' compensation (Kshs. 64,000/=), December 2013 salary (Kshs. 16,000/=), costs of the appeal and the ELRC case, and interest at court rates. Service pay was refused for want of proof.

Key legal issues

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01

Whether the dismissal was procedurally fair under section 41 of the Employment Act

Holding

The dismissal was procedurally unfair because the respondent failed to prove service of the show-cause and disciplinary hearing letters; the mandatory dual requirements of explanation and hearing under section 41 were not met

Reasoning

The letters were sent to a postal address different from the appellant's address in his employment letter, with no certificate of posting, return of service or proof of personal service. The burden of proving service lay on the respondent under section 109 of the Evidence Act. Without proof that the appellant received the letters, he was never accorded the explanation or hearing that section 41 mandates, denying him fair administrative action.

p. 5
02

Whether the dismissal was justified under section 45 of the Employment Act

Holding

The termination was not justified: there was no valid or fair reason relating to conduct, capacity, compatibility or operational requirements, and the procedure was unfair

Reasoning

The attendance list covering the wrong period contradicted the respondent's own testimony, which was untenable. The alleged refusal of alternative duties failed because the employer did not consult or revise the contract in writing under section 10 before assigning new duties outside the driver's job description. The employer therefore proved neither desertion nor refusal of duties as valid grounds for termination.

p. 8
03

Entitlement to reliefs for unfair termination

Holding

The appellant was entitled to notice pay, four months' compensation, December 2013 salary, a certificate of service, costs and interest; service pay was refused for want of proof

Reasoning

Sections 49(1) as read with 50 and 51 of the Employment Act govern remedies. Summary dismissal without notice entitled the appellant to one month's notice pay. Compensation was capped at four months given the short tenure, clean record and that he was not driving at the time of the accident. The certificate of service claim under section 51 had been overlooked by the trial judge.

p. 8

Legal principles established

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  • Section 41 of the Employment Act imposes mandatory dual requirements: the employer must explain reasons for contemplated termination in a language the employee understands in the presence of a person of the employee's choice, and must hear and consider the employee's representations before termination or summary dismissal
  • The burden of proving that termination letters were served on an employee lies on the employer, who must produce proof of posting or delivery; sending letters to an address different from the employee's known address without explanation does not discharge that burden
  • An employee's duties cannot be changed or revised without mandatory consultation; the employer must demonstrate consultation and written notification of any change in terms before alleging refusal to perform alternative duties
  • An appellate court hearing an appeal from the ELRC on fact and law has an obligation to re-evaluate the evidence and arrive at its own conclusion, while allowing for the absence of the benefit of assessing witness demeanour

Court orders

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  1. 1.Judgment of the ELRC set aside, saving the award of Kshs. 32,000/= for accrued leave
  2. 2.Declaration that the termination of employment was unfair and unlawful
  3. 3.The respondent to issue the appellant with a Certificate of Service
  4. 4.One month's salary in lieu of notice of Kshs. 16,000/=
  5. 5.Compensation for unlawful termination equivalent to 4 months' salary, total Kshs. 64,000/=
  6. 6.One month's salary for work done in December 2013 and not paid, in the sum of Kshs. 16,000/=
  7. 7.Costs of the appeal and of the case before the ELRC to the appellant
  8. 8.Interest at court rates

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 41(1)
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007section 4(1)
  • Employment Act, 2007section 44(3)
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 44(4)(a)
  • Employment Act, 2007section 45
  • Employment Act, 2007section 47
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 49(1)
  • Employment Act, 2007section 50
  • Employment Act, 2007section 51
  • Employment Act, 2007section 74
  • Employment Act, 2007section 10(1)
  • Employment Act, 2007section 10(2) as read with (5)
  • Employment Act, 2007section 19(1)(c)
  • Employment Act, 2007section 42(1)
  • Employment Act, 2007section 1
  • Evidence Actsection 109
  • Employment and Labour Relations Court Actsection 12(4)
  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 28(2)
  • The Statute Law (Misc.) Amendments Act No. 18 of 2014null

Cases cited (5)

  • Selle V Associated Motor Boat Company (1968) EA 123
    (1968) EA 123
  • Benard Ngugi V G4S Security Services Kenya Limited (2013) eKLR
    (2013) eKLR
  • Janet Nyandiko V Kenya Commercial Bank Limited, (2017) eKLR
    (2017) eKLR
  • Board of Governors, Cardinal Otunga High School, Mosocho & 2 others v Elizabeth Kwamboka Khaemba, (2016) eKLR
    (2016) eKLR
  • Kiska Ltd v De Angels (1969) E.A 6
    (1969) E.A 6
On appeal from
Employment and Labour Relations Court at Nakuru
null
Jurisdiction invoked
The Statute Law (Misc.) Amendments Act No. 18 of 2014 - appeal from the Employment and Labour Relations Court on matters of fact and law

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Kosgei v Metkei Multi-Purpose Company Limited (Civil Appeal 95 of 2017) [2021] KECA 140 (KLR)", Case Analysis (2021). Eldoret Civil Appeal No. 94 of 2017 (related appeal; judgment delivered at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/140/eng@2021-11-19

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