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ELRCPartially AllowedCause No 1669 of 2013· [2014] KEELRC 366 (KLR)

John Ndegwa Kaminja v Naivas Limited [2014] KEELRC 366 (KLR)

Industrial Court of Kenya at Nairobi
11 June 2014
MBMbaru
2,157 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 Naivas unfairly dismissed a shop attendant because it never gave him a hearing before summary dismissal, awarding compensation despite valid misconduct grounds.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a Shop Attendant on Kshs.13,000 per month, was summarily dismissed on 11th July 2013 for what the respondent termed insubordination. He alleged the real cause was his recruitment of fellow employees to a trade union, and that he was dismissed without warning, hearing or reasons, his appeal having been ignored. He sought reinstatement, or alternatively compensation, leave pay, notice pay, general damages, a Certificate of Service and costs. The respondent defended the dismissal as gross insubordination justified under section 44(4) of the Employment Act, contending the claimant was behind a threatened strike and had been rude to management, and that all dues were paid. The court held that although section 44(4)(d) and (e) permits summary dismissal for abusive or insulting conduct, section 41(2) mandatorily requires the employer to hear the employee before dismissal, and that this obligation applies even to allegations of gross misconduct. The respondent neither pleaded nor proved that the claimant was given an opportunity to make representations, so the dismissal was procedurally unfair. General damages of Kshs.344,919.40 were declined for lack of substantiation, and reinstatement was refused as the case was not exceptional. The court awarded six months' pay as compensation (Kshs.78,000), one month's notice pay (Kshs.13,000) and accrued leave of Kshs.4,800, ordered issuance of a Certificate of Service within 14 days, and directed each party to bear their own costs in the absence of evidence of a demand notice before filing.

Key legal issues

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01

Procedural fairness in summary dismissal

Holding

The dismissal was procedurally unfair because the respondent neither pleaded nor proved that it gave the claimant an opportunity to make representations before dismissal

Reasoning

Section 44(4) of the Employment Act permits summary dismissal for abusive or insulting conduct, but section 41(2) imposes a mandatory antecedent obligation to hear the employee. Natural justice requires a hearing before decisions affecting rights. The respondent did not plead or adduce evidence of any hearing; the human resource officer who issued the letter did not preside over any hearing, and the witness could not confirm one occurred. The flawed process rendered the dismissal unfair.

p. 3
02

General damages claim

Holding

The claim for general damages was declined for lack of substantiation

Reasoning

The claimant sought Kshs.344,919.40 in general damages but could not explain the basis of the figure, admitting the memo was drafted for him. Following the authority relied on by the respondent, damages unsupported by pleadings or evidence cannot be awarded. The claim therefore failed for want of proof.

p. 3
03

Reinstatement as a remedy

Holding

Reinstatement refused as the case was not exceptional

Reasoning

The court will grant specific performance of an employment contract only in the clearest of cases where no other effective remedy exists. The claimant's circumstances did not stand out as exceptional, and compensation was an adequate remedy for the unfair termination, so reinstatement was not granted.

p. 4
04

Compensation, notice pay and accrued leave

Holding

Compensation of 6 months' pay (Kshs.78,000), one month's notice pay (Kshs.13,000) and 11 days' accrued leave (Kshs.4,800) awarded

Reasoning

Having found unfair termination, the court assessed compensation at six months of the claimant's gross monthly pay of Kshs.13,000. Notice pay is due in a case of unfair summary dismissal. The 11 days of accrued leave were computed at the claimant's monthly salary, yielding Kshs.4,800.

p. 4

Legal principles established

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  • Before invoking summary dismissal under section 44(4) of the Employment Act, an employer must give the employee an audience under section 41(2) to make representations which the employer must consider
  • The obligation to hear an employee under section 41(2) is mandatory and applies even where the employee is accused of gross misconduct
  • Procedural fairness requires that before a decision affecting another person's rights or interests is made, that person be given a hearing

Court orders

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  1. 1.Declaration that the dismissal of the claimant was procedurally unfair
  2. 2.Award of Kshs.78,000.00 as compensation for unfair termination (6 months' pay)
  3. 3.Award of one month's notice pay at Kshs.13,000.00
  4. 4.Award of accrued leave at Kshs.4,800.00
  5. 5.The respondent to issue the claimant a Certificate of Service within 14 days
  6. 6.Each party to bear their own costs
Jurisdiction invoked
Original jurisdiction of the Industrial Court of Kenya over employment and labour relations disputes

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, "John Ndegwa Kaminja v Naivas Limited [2014] KEELRC 366 (KLR)", Case Analysis (2014). Cause No 1669 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/366/eng@2014-06-11

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