EVANS MOGUTE NYAUNDI V CHINA ROAD AND BRIDGE CORPORATION (K) LIMITED [2013] KEELRC 357 (KLR)
The bottom line
#An employer can have a valid reason to fire you, but still lose in court if you were never given a chance to be heard.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for summary dismissal
The Respondent had substantive justification for terminating the Claimant's employment on the ground of desertion of duty.
The Respondent alleged the Claimant deserted duty. The Claimant claimed he had permission from his Foreman, but adduced no corroborative evidence. Under Section 44(4) of the Employment Act absence without leave or lawful cause justifies summary dismissal. The Court could not rely on the Claimant's uncorroborated word against the Respondent's denial, and found the reason valid.
Procedural fairness in summary dismissal
The termination was unfair for want of due process because the Claimant was never given an opportunity to show cause.
Section 41 of the Employment Act requires an employer to explain the reasons for termination and hear the employee's representations before dismissal, including summary dismissal under Section 44(3) or (4). The Respondent relied on its own Terms and Conditions of Employment, but internal procedures must conform to the law. No evidence showed the Claimant was heard; the Court agreed with Justice Rika in the Anne Atieno Sadied case that substantive justification does not displace procedural fairness.
Determination of the Claimant's salary
The Court adopted Kshs. 14,419 as the Claimant's monthly salary based on his payslips, the Respondent having produced no documentary evidence of the lower figure claimed.
The Claimant produced payslips showing gross pay varying with hours worked. The Respondent asserted a minimum salary of Kshs. 6,773.40 plus house allowance but provided no conclusive documentary proof. Sections 10 and 20 of the Employment Act place record-keeping obligations on employers, and in the absence of such records the Court adopts the employee's particulars.
Entitlement to leave and gratuity
The Claimant was awarded prorata leave at 1.75 days per completed month under Section 28(1)(b) but was denied service gratuity as an NSSF contributor.
Leave accrues at 1.75 days per completed month of service under Section 28(1)(b) of the Employment Act, computed for 7 months of service. On gratuity, the payslips showed the Claimant was contributing to the National Social Security Fund, disqualifying him from service gratuity.
Legal principles established
#- Even in cases of summary dismissal, the employee retains the right to be heard; there is no summary disciplinary procedure.
- Substantive justification for termination does not excuse the employer's duty to afford procedural fairness.
- In the absence of employer records required under Sections 10 and 20 of the Employment Act, the Court will adopt the salary particulars provided by the employee.
Court orders
#- 1.Respondent to pay two months' salary in compensation for unfair termination of Kshs. 28,838
- 2.Respondent to pay one month's salary in lieu of notice of Kshs. 14,419
- 3.Respondent to pay prorata leave at 1.75 days for 7 months of service of Kshs. 5,888
- 4.Respondent to issue the Claimant with a Certificate of Service
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Industrial Court of Kenya jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamande v Nairobi City Water & Sewerage Company Limited (Cause 612 of 2017) [2023] KEELRC 927 (KLR)[2023] KEELRC 927 (KLR)24 Apr 2023
Cite this brief
#Cite this brief
Caselaw, "EVANS MOGUTE NYAUNDI V CHINA ROAD AND BRIDGE CORPORATION (K) LIMITED [2013] KEELRC 357 (KLR)", Case Analysis (2013). Cause 1082 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/357/eng@2013-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.