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Court of AppealPartially AllowedCivil Appeal (Employment and Labour Relations) – related to Civil Appeal No. 95 of 2017; case number as printed not fully stated in the judgment· [2021] KECA 161 (KLR)

Rotich v Metkei Multi-Purpose Company Limited (Civil Appeal 94 of 2017) [2021] KECA 161 (KLR)

Court of Appeal of Kenya
19 November 2021
5,630 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled the driver's dismissal unfair because the employer couldn't prove he received disciplinary notices or got a fair hearing before termination.

What this practically means

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Executive summary

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The appellant, a milk tanker driver employed by the respondent, was summarily dismissed by letter dated 10th February 2014 after the tanker he was driving overturned in an accident on 9th December 2013. The respondent alleged he deserted duty, failed to submit an accident report and refused alternative duties. The Employment and Labour Relations Court at Nakuru (Radido, J.) dismissed his claim on 2nd November 2016, finding he had not discharged his burden under Section 47(5) of the Employment Act. On appeal, the Court of Appeal re-evaluated the evidence and reversed. It found the respondent failed to prove service of the notice to show cause and the invitation to the disciplinary hearing, which were sent to a postal address different from that in the appellant's employment letter, with no certificate of posting. The mandatory two-stage process under Section 41 – oral explanation with a chosen companion, and a hearing – was therefore not met, nor was the appellant ever told termination was contemplated. On substance, the allegations of desertion, refusal of alternative duties and failure to report were unproved: the duty register did not support absence, alternative duties were never identified, no consultation or written variation under Section 10 occurred, and the Board minutes were unsigned. The dismissal was unfair and unjustified under Sections 43 and 45. The court allowed the appeal, set aside the trial judgment, declared the termination unfair and unlawful, ordered a certificate of service, four months' salary compensation, notice pay, one year's leave pay and December 2013 salary, with costs of both courts and interest. Service pay was refused for want of evidence on pension enrolment.

Key legal issues

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01

Whether the procedural requirements of Section 41 of the Employment Act were met

Holding

The requirements of both Section 41(1) and 41(2) were not met: no proved service of the letters, no oral explanation, and no notice that termination was contemplated

Reasoning

The letters demanding a written report and inviting the appellant to a disciplinary meeting were sent to a postal address different from that in his letter of appointment, with no certificate of posting or proof of delivery. The explanation contemplated by Section 41(1) must be oral and given in the presence of a person of the employee's choice. The letters also never informed the appellant that termination was being contemplated. The respondent therefore failed to discharge the burden of proving procedural fairness.

p. 7
02

Whether the dismissal was substantively justified

Holding

There was no valid reason for termination; the allegations of desertion, refusal to perform other duties and failure to report the accident were not proved

Reasoning

Under Section 43 the employer must prove the reasons for termination. The register produced did not show absence from duty; the appellant was at the accident scene, at the police station and at the insurer on the relevant day. The alternative duties were never identified nor was his contract varied by consultation in writing under Section 10. The Board minutes were unsigned and unauthenticated, casting doubt on the disciplinary meeting.

p. 9
03

Whether the appellant could be required to perform other duties

Holding

No: the employer must consult and revise the contract in writing before assigning duties outside the job description

Reasoning

The appellant's job description was confined to driving and vehicle maintenance. Section 10 of the Act requires consultation before any change of duties, and the employer must revise the contract and notify the employee in writing. The respondent's witness was vague about the alternative duties allegedly declined, so the allegation of refusal could not stand.

p. 8
04

Remedies available on a finding of unfair termination

Holding

Compensation under Section 49(c) was awarded at four months' salary, plus notice pay, leave pay and December 2013 salary, and a certificate of service under Section 51

Reasoning

Having worked one year and nine months, the appellant was entitled to compensation equivalent of four months' gross salary, one month's notice pay, one year's leave pay and unpaid December 2013 salary. Service pay failed for want of proof of non-enrolment in a pension or provident fund. Section 51 mandatorily required a certificate of service, which the trial judge had failed to address.

p. 10

Legal principles established

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  • Before termination on grounds of misconduct, poor performance or incapacity, the employer must orally explain the reason for contemplated termination to the employee in a language the employee understands and allow the employee to have a fellow employee or shop floor union representative present, and must hear and consider the employee’s representations – the two stages are mandatory.
  • The employer bears the burden of proving that a notice to show cause and an invitation to a disciplinary hearing were actually sent and received by the employee, including proof of posting or delivery to the correct address.
  • An employee’s duties cannot be changed or revised outside of consultation with the employee; consultation before change of duty is mandatory and the change must be reflected in writing and notified to the employee.
  • In a first appeal, the Court of Appeal will interfere with the decision of the trial judge only where it is based on no evidence, on a misapprehension of the evidence, or where the judge acted on wrong principles.

Court orders

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  1. 1.Declaration that the termination of employment was unfair and unlawful
  2. 2.The respondent does issue the appellant with a certificate of service
  3. 3.One month’s salary in lieu of notice of Kshs. 16,000/= to the appellant
  4. 4.Compensation for unlawful termination in the equivalent sum of 4 months’ salary @ Kshs. 16,000/=
  5. 5.One year’s leave pay in the sum of Kshs. 16,000/=
  6. 6.One month’s salary for work done in the month of December 2013 and not paid, in the sum of Kshs. 16,000/=
  7. 7.Costs of this 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(1)
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(3)
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 51
  • Employment Act, 2007Section 10(1), (2) as read with (5)
  • Employment Act, 2007Preamble
  • Evidence ActSection 109
  • The Statute Law (Misc.) Amendments Act No. 18 of 2014not specified
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 28(2)

Cases cited (6)

  • Selle V Associated Motor Boat Company
    (1968) EA 123
  • Ramji Ratna and Company Limited V Wood Products (Kenya Limited)
    Civil Appeal No. 117 of 2001
  • Bernard Ngugi V G4S Security Services Kenya Limited
    (2013) eKLR
  • Janet Nyandiko V Kenya Commercial Bank Limited
    (2017) eKLR
  • Board of Governors, Cardinal Otunga High School, Mosocho & 2 others V Elizabeth Kwamboka Khaemba
    (2016) eKLR
  • Seabolo V Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
On appeal from
Employment and Labour Relations Court at Nakuru
not stated in the judgment (statement of claim dated 11th November 2014)
Jurisdiction invoked
The Statute Law (Misc.) Amendments Act No. 18 of 2014, under which an appeal lies to the Court of 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 (3)

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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, "Rotich v Metkei Multi-Purpose Company Limited (Civil Appeal 94 of 2017) [2021] KECA 161 (KLR)", Case Analysis (2021). Civil Appeal (Employment and Labour Relations) – related to Civil Appeal No. 95 of 2017; case number as printed not fully stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/161/eng@2021-11-19

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