Rotich v Metkei Multi-Purpose Company Limited (Civil Appeal 94 of 2017) [2021] KECA 161 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the procedural requirements of Section 41 of the Employment Act were met
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
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.
Whether the dismissal was substantively justified
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
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.
Whether the appellant could be required to perform other duties
No: the employer must consult and revise the contract in writing before assigning duties outside the job description
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.
Remedies available on a finding of unfair termination
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
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.
Legal principles established
#- 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
#- 1.Declaration that the termination of employment was unfair and unlawful
- 2.The respondent does issue the appellant with a certificate of service
- 3.One month’s salary in lieu of notice of Kshs. 16,000/= to the appellant
- 4.Compensation for unlawful termination in the equivalent sum of 4 months’ salary @ Kshs. 16,000/=
- 5.One year’s leave pay in the sum of Kshs. 16,000/=
- 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.Costs of this 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
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Oburo v Frodak Kenya Limited (Appeal E025 of 2024) [2025] KEELRC 2353 (KLR)[2025] KEELRC 2353 (KLR)28 May 2025
- 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
Cite this brief
#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.