Moses Kaunda Moro v CMC Motors Group Ltd [2013] KEELRC 929 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Substantive justification for the summary dismissal
The Respondent failed to establish a valid reason for the termination; the air filter charge had been revoked and had no nexus with the dismissal, and the diversion charge was a general allegation without particulars.
The show cause letter on the air filter issue was revoked on 31st July 2012 after the Claimant's detailed response, and no evidence of any further investigations was produced. The reason given at dismissal (diverting customer vehicles to private garages) had no nexus with the revoked charge and lacked particulars of vehicles, dates or garages, so the Respondent failed the test under Section 45(2)(a) and (b) of the Employment Act.
Procedural fairness in effecting the summary dismissal
The procedure adopted was irregular; the Claimant was never subjected to the Section 41 disciplinary procedure or the Respondent's internal disciplinary rules on the charge that led to the dismissal.
Section 41 of the Employment Act requires an employer to explain the reason for contemplated termination and to hear the employee's representations before summary dismissal. The only questioning the Claimant underwent concerned the air filter charge, not the diversion allegation. No disciplinary meeting or internal process was proved. The dismissal therefore fell foul of Section 41 and was procedurally unfair.
Entitlement to remedies
The Claimant was awarded the equivalent of twelve months' salary in compensation for unfair termination and one month's salary in lieu of notice; claims for house allowance, punitive and aggravated damages and service pay failed.
Having found the termination unfair for want of substantive justification and procedural fairness, the Court exercised its discretion under Section 49 of the Employment Act to award twelve months' salary compensation plus notice pay. The consolidated salary defeated the house allowance claim, punitive damages were unproved, and membership of a pension scheme under Section 35(6) barred service pay.
Legal principles established
#- For a termination of employment to pass the fairness test, there must be both substantive justification (a valid reason) and procedural fairness under Section 45(2) of the Employment Act, 2007
- A general allegation of misconduct without particulars (specific vehicles, dates or garages) does not amount to a valid reason for termination
- An employer must comply with Section 41 of the Employment Act (explanation and hearing) before summary dismissal on grounds of misconduct
Court orders
#- 1.Award of 12 months' salary in compensation for unfair termination, Kshs. 557,280
- 2.Award of one month's salary in lieu of notice, Kshs. 46,440
- 3.Total award of Kshs. 603,720 subject to statutory deductions in accordance with Section 49(2) of the Employment Act, 2007
- 4.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (Industrial Court of Kenya, Cause No 192 of 2013)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ambrose Mutua Munyasya v Ukulima Co-operative Savings and Credit Society Limited [2018] KEELRC 1295 (KLR)[2018] KEELRC 1295 (KLR)31 Jul 2018
- Cornelius Kiprotich Rop v Rachel Jemeli Singoei [2016] KEELRC 828 (KLR)[2016] KEELRC 828 (KLR)19 Jul 2016
Cite this brief
#Cite this brief
Caselaw, "Moses Kaunda Moro v CMC Motors Group Ltd [2013] KEELRC 929 (KLR)", Case Analysis (2013). Cause No 192 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/929/eng@2013-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.