JORAM GAKUMO V THIKA COFFE MILLS LIMITED [2012] KEELRC 70 (KLR)
The bottom line
#A Kenyan court ruled that even employees accused of gross misconduct must be heard before dismissal, awarding a driver over Kshs 223,000.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of summary dismissal
The dismissal was procedurally unfair because the Respondent gave the Claimant no opportunity to make representations before dismissal
Section 44(4)(d) permits summary dismissal for insulting language towards a senior, but Section 41(2) obliges the employer to give the employee an audience and consider representations before dismissing. The Respondent neither pleaded nor adduced evidence that it gave the Claimant such an opportunity. Procedural fairness, rooted in audi alteram partem, applies to dismissals even for gross misconduct. The dismissal therefore breached the statutory duty and the rules of natural justice.
Burden of proof on quantified claims such as unpaid leave
Claims for unpaid leave must be specifically pleaded and strictly proved like special damages; the court nonetheless granted the claim in the absence of contrary evidence
The Claimant did not lay before the court the Respondent's leave policies and exhibited only page 1 of his employment letter. The court applied Section 28 of the Employment Act, which sets the irreducible minimum annual leave at 21 working days with full pay after 12 consecutive months of service. With only the Claimant's uncontroverted testimony before it, the court granted the claim in a reduced sum of Kshs 22,722.
Discretionary award of compensation under Section 49(1)(c)
Maximum 12 months' compensation requires a proper evidentiary basis; only 6 months was awarded
Although termination was procedurally unfair, the Claimant did not lay a proper basis for the maximum award of 12 months' wages. He led no evidence on his age or retirement age and did not exhibit all pages of his employment letter. These material omissions led the court to award 6 months' compensation of Kshs 139,932 under Section 49(1)(c) of the Employment Act.
Legal principles established
#- Section 41(2) of the Employment Act imposes a statutory obligation on an employer to hear an employee and consider his representations before summary dismissal, even for gross misconduct
- The Employment Act, 2007 effected a fundamental shift from the old common law position that natural justice did not apply to employment contracts unless incorporated
Court orders
#- 1.Declaration that the termination of the Claimant was procedurally unfair
- 2.Award of Kshs 15,046 as unpaid salary for January 2012
- 3.Award of Kshs 22,722 as unpaid leave
- 4.Award of Kshs 28,506 as overtime
- 5.Award of Kshs 17,479 as one month's payment in lieu of notice
- 6.Award of Kshs 139,932 as 6 months' compensation for unfair termination
- 7.Total award of Kshs 223,685 to the Claimant
- 8.The Claimant to have the costs of the Claim
- Jurisdiction invoked
- Jurisdiction under the Industrial Court over employment disputes (Employment Act claims), Cause filed under the Industrial Court's cause procedure
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JORAM GAKUMO V THIKA COFFE MILLS LIMITED [2012] KEELRC 70 (KLR)", Case Analysis (2012). Cause 963 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/70/eng@2012-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.