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ELRCAllowedCause No. 517 of 2011· [2013] KEELRC 182 (KLR)

Peter Mungai Gacaga v Primarosa Flowers Ltd. & another [2013] KEELRC 182 (KLR)

Industrial Court of Kenya
5 June 2013
DMD.K. Njagi Marete
1,078 words in judgment
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The bottom line

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A Kenyan court ruled a verbal, undocumented suspension unlawful and awarded an HR manager over KShs. 640,000 because the employer offered no evidence.

What this practically means

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Executive summary

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The claimant, employed by the 1st respondent as Human Resource Manager on 7th March 2005 at a basic salary of Kshs.63,416.00, alleged that on 5th February 2010 he was unprocedurally verbally suspended by the 2nd respondent, later confirmed by the Finance Manager, and never served with a suspension letter. The dispute arose from a cholinesterase screening in October 2009 in which thirty sprayers had abnormal results; the claimant convened meetings to address the issue, but the affected sprayers instead resigned and sued the employer, which blamed the claimant and suspended him. The claimant contended the suspension breached the disciplinary manual, natural justice and fair procedure, with no warning, show cause or formal letter. The 1st respondent maintained the claimant absconded duty and the claim disclosed no cause of action; the 2nd respondent pleaded absence of privity of contract and denied any involvement. The court framed two issues: whether the claimant was unlawfully suspended and whether he was entitled to relief. It found the claimant's oral and written account unrebutted by the respondents, who relied on mere denials and an unsupported abscondment defence, which failed. Finding the suspension illegal and unlawful, the court awarded Ksh.640,501.00 comprising notice pay, 28 days' leave, 5 days worked in February 2010 and 8 months' compensation for wrongful termination, payable within thirty days, with costs borne by the respondent. Judgment delivered on 5th June 2013 by D.K. Njagi Marete J.

Key legal issues

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01

Whether the claimant was unlawfully and illegally suspended from employment

Holding

Yes - the suspension was illegal and unlawful; the employer's defence of abscondment was unsupported and no disciplinary steps were evidenced.

Reasoning

The claimant testified that he was verbally suspended on 5th February 2010 by the 2nd respondent and confirmed by the Finance Manager, and never received a suspension letter. The respondents alleged absconding from duty but adduced no supporting evidence such as a show cause letter or warning. Natural justice and the disciplinary manual procedure were not followed. The court found the claimant's account unrebutted and preferred his version on a balance of probabilities.

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02

Whether the claimant is entitled to the relief sought

Holding

Yes - the claimant was awarded notice pay, leave, salary for days worked and 8 months' compensation for wrongful termination.

Reasoning

Having found the suspension/termination unlawful, the court held that a finding for the claimant entitled him to the relief sought, quantifying notice pay at Ksh.63,416.00, 28 days' leave at Ksh.59,188.00, 5 days worked at Ksh.10,569.00 and 8 months' compensation at Ksh.507,328.00, totalling Ksh.640,501.00, payable within 30 days with costs to the claimant.

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Legal principles established

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  • A respondent who merely denies a claimant's unchallenged account of events, without rebutting it with evidence, fails to discharge its burden and the claimant's evidence on a balance of probabilities prevails.

Court orders

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  1. 1.That the claimant's suspension from employment was illegal and unlawful.
  2. 2.The respondents be and are hereby ordered to compensate and pay the claimant notice pay of Ksh.63,416.00, 28 days leave of Ksh.59,188.00, 5 days worked in February 2010 of Ksh.10,569.00, and 8 months compensation for wrongful termination of Ksh.507,328.00, totalling Ksh.640,501.00.
  3. 3.That the respondent be and is hereby ordered to meet and pay the claimant within thirty (30) days from the date of these orders of court.
  4. 4.The cost of this cause shall be borne by the respondent.
Jurisdiction invoked
Industrial Court of Kenya, employment and labour relations jurisdiction (Cause No. 517 of 2011)

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, "Peter Mungai Gacaga v Primarosa Flowers Ltd. & another [2013] KEELRC 182 (KLR)", Case Analysis (2013). Cause No. 517 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/182/eng@2013-09-04

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