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ELRCPartially AllowedCause No 1197 of 2011· [2013] KEELRC 888 (KLR)

Job Lubanga Asiema v Kivi Milimani Hotel [2013] KEELRC 888 (KLR)

Industrial Court of Kenya
12 November 2013
1,848 words in judgment
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The bottom line

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A Kenyan court ruled that firing an employee on mere suspicion, without a hearing, was unfair and awarded him eight months' pay.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Porter on 1st September 2009, was on duty at Reception on 27th January 2011 when VIP guests reported stolen belongings. He and five colleagues were arrested; he was suspended the same day and his employment terminated on 11th April 2011, with a cheque for his dues enclosed in the termination letter. He claimed unfair and unlawful termination, seeking leave, salary and allowances for the remainder of his employment, damages, and severance pay. The Respondent maintained the dismissal was lawful and that the Claimant, whose probation had been extended, was terminated for lack of trust. The Court held the Respondent failed both the substantive and procedural limbs of a fair termination. The police had reported that evidence could not link the suspects to the crime, so the termination rested on mere suspicion; the termination letter gave no reason, and the Respondent failed to prove a valid reason under Sections 43 and 45 of the Employment Act. The Claimant was never afforded a hearing as required by Section 41. The Court also rejected the probation and discharge-clause defences, applying its own precedents. Compensation of eight months' salary (Kshs. 131,104) was awarded, but the prayers for salary and allowances for the remainder of the employment period (equivalent to specific performance), severance pay and leave were dismissed. Costs were awarded to the Claimant.

Key legal issues

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01

Substantive justification for termination

Holding

The Respondent failed to demonstrate any valid reason; termination was based on mere suspicion where police evidence could not link the Claimant to the theft

Reasoning

The Respondent relied on suspected involvement in a guests' room robbery, but the OCS reported the evidence could not link any suspect to the crime. The termination letter gave no reason, and a recommendation letter described the Claimant as hardworking, honest and responsible. The Respondent abdicated its disciplinary responsibility to the police rather than conducting internal proceedings.

p. 3
02

Procedural fairness

Holding

The termination was procedurally unfair because the Claimant was never given an opportunity to defend himself as required under Section 41 of the Employment Act

Reasoning

Section 41 sets out the procedure for handling misconduct cases. The Claimant was suspended pending investigation but was terminated without being afforded a hearing on any findings. Suspended employees have a legitimate expectation to rebut investigation findings before further action.

p. 3
03

Effect of probation status

Holding

The Claimant was confirmed in employment in September 2009; the probation argument failed

Reasoning

The extended probation ended in September 2009 and the appointment letter dated 1st September 2009 referred to confirmation of appointment, so the Respondent's argument that probation reliefs were unavailable failed.

p. 4
04

Effect of discharge clause

Holding

The discharge clause did not bar the claim; irregular termination cannot be cured by an employee's statement of no further claims

Reasoning

Following Simon Muguku Gichigi v Taifa SACCO Limited, a discharge form cannot circumvent the employer's obligations where the law was not followed. The termination had many irregularities that could not be cured by the acknowledgement.

p. 4

Legal principles established

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  • An employer must prove reasons for termination; failure renders termination unfair under Section 45
  • Suspicion alone is not a valid reason for termination of employment
  • A form of discharge executed by an employee cannot cure an employer's failure to follow the law
  • An employee on suspension has a legitimate expectation of being heard before further action is taken

Court orders

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  1. 1.Award of the sum of Kshs. 131,104 to the Claimant, being the equivalent of eight (8) months' pay as compensation for unfair termination
  2. 2.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 41

Cases cited (2)

  • David O. Owino Vs Kenya Institute of Special Education
    [2013] eKLR
  • Simon Muguku Gichigi Vs Taifa SACCO Limited
    [2012] eKLR
Jurisdiction invoked
Employment Act, 2007 (Industrial Court jurisdiction over employment disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Job Lubanga Asiema v Kivi Milimani Hotel [2013] KEELRC 888 (KLR)", Case Analysis (2013). Cause No 1197 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/888/eng@2013-11-12

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