Kosgei v Metkei Multi-Purpose Company Limited (Civil Appeal 95 of 2017) [2021] KECA 140 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the dismissal was procedurally fair under section 41 of the Employment Act
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
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.
Whether the dismissal was justified under section 45 of the Employment Act
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
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.
Entitlement to reliefs for unfair termination
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
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.
Legal principles established
#- 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
#- 1.Judgment of the ELRC set aside, saving the award of Kshs. 32,000/= for accrued leave
- 2.Declaration that the termination of employment was unfair and unlawful
- 3.The respondent to issue the appellant with a Certificate of Service
- 4.One month's salary in lieu of notice of Kshs. 16,000/=
- 5.Compensation for unlawful termination equivalent to 4 months' salary, total Kshs. 64,000/=
- 6.One month's salary for work done in December 2013 and not paid, in the sum of Kshs. 16,000/=
- 7.Costs of the appeal and of the case before the ELRC to the appellant
- 8.Interest at court rates
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ziro v Fumathoka Kindergaten & Schools (Cause E033 of 2024) [2025] KEELRC 394 (KLR)[2025] KEELRC 394 (KLR)13 Feb 2025
- Ziro v Fumathoka Kindergaten & Schools (Cause E033 of 2024) [2025] KEELRC 394 (KLR)[2025] KEELRC 394 (KLR)13 Feb 2025applied
- Owudu v Digital Sanitation Services Limited (Appeal E109 of 2023) [2024] KEELRC 917 (KLR)[2024] KEELRC 917 (KLR)18 Apr 2024
- Solvit Security Solutions Limited v Masase (Appeal E089 of 2022) [2023] KEELRC 2300 (KLR)[2023] KEELRC 2300 (KLR)21 Sept 2023
- Nyangendo v Road Focus Consulting Limited (Cause E002 of 2021) [2023] KEELRC 812 (KLR)[2023] KEELRC 812 (KLR)27 Mar 2023applied
Cite this brief
#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.