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ELRCPartially AllowedCause 963 of 2012· [2012] KEELRC 70 (KLR)

JORAM GAKUMO V THIKA COFFE MILLS LIMITED [2012] KEELRC 70 (KLR)

Industrial Court of Kenya
26 October 2012
2,276 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, a driver employed by the Respondent from 1 June 2006, was summarily dismissed on 20 January 2012 by letter accusing him of showing disrespect and using unpalatable language towards a senior - treated as insubordination. He claimed he had not been heard before the dismissal. The Respondent, though represented earlier, filed no Response and did not appear at the hearing, which proceeded on 24 September 2012 after the court confirmed service of the hearing date. The court held that while Section 44(4)(d) of the Employment Act permits summary dismissal for abusive or insulting language towards a senior, Section 41(2) obliges the employer to hear the employee and consider representations before dismissal, even where gross misconduct is alleged. The court traced the shift from the old common law position in Rift Valley Textiles Limited v Edward Onyango Oganda, which held natural justice inapplicable to employment contracts unless incorporated, to the radical change effected by the Employment Act, 2007. Finding no evidence of any hearing, it declared the dismissal procedurally unfair. The court awarded unpaid January 2012 wages of Kshs 15,046, unpaid leave of Kshs 22,722, overtime of Kshs 28,506, one month's salary in lieu of notice of Kshs 17,479, and 6 months' compensation of Kshs 139,932 - totalling Kshs 223,685. It refused the leave travel allowance claim for want of proof and declined the maximum 12 months' compensation for lack of evidentiary basis, awarding 6 months instead. Costs were awarded to the Claimant.

Key legal issues

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01

Procedural fairness of summary dismissal

Holding

The dismissal was procedurally unfair because the Respondent gave the Claimant no opportunity to make representations before dismissal

Reasoning

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.

p. 3
02

Burden of proof on quantified claims such as unpaid leave

Holding

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

Reasoning

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.

p. 4
03

Discretionary award of compensation under Section 49(1)(c)

Holding

Maximum 12 months' compensation requires a proper evidentiary basis; only 6 months was awarded

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Declaration that the termination of the Claimant was procedurally unfair
  2. 2.Award of Kshs 15,046 as unpaid salary for January 2012
  3. 3.Award of Kshs 22,722 as unpaid leave
  4. 4.Award of Kshs 28,506 as overtime
  5. 5.Award of Kshs 17,479 as one month's payment in lieu of notice
  6. 6.Award of Kshs 139,932 as 6 months' compensation for unfair termination
  7. 7.Total award of Kshs 223,685 to the Claimant
  8. 8.The Claimant to have the costs of the Claim

Authorities

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Legislation

  • Employment ActSection 41(2)
  • Employment ActSection 44(4)
  • Employment ActSection 44(4)(d)
  • Employment ActSection 28
  • Employment ActSection 46
  • Employment ActSection 49(1)(c)
  • Labour Institutions Act
  • Regulation of Wages (Motor Engineering Trades) Orderregulation 11

Cases cited (2)

  • Rift Valley Textiles Limited v Edward Onyango Oganda
    Civil Appeal No. 27 of 1992
  • Kenya Ports Authority v Silas Obengele
    [2008] e KLR
Jurisdiction invoked
Jurisdiction under the Industrial Court over employment disputes (Employment Act claims), Cause filed under the Industrial Court's cause procedure

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.