Thomas Mbulo v Cedars Restaurant Company Limited [2014] KEELRC 947 (KLR)
The bottom line
#A Kenyan court ruled a waiter's firing was unfair because the employer never gave him a hearing, ordered compensation and his employment records.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was fair
Unfair - the Respondent failed to prove compliance with Section 41 procedure, produced no records of the meeting, never issued a dismissal letter, and the last warning was 11 months old
The employer bears the burden of proving both valid reason and fair procedure under Sections 43 and 45 of the Employment Act. No records of the meeting in the manager's office were produced and no dismissal letter with grounds was issued. RW1 was not present at the dismissal meeting, leaving the Claimant's testimony that he was not heard unchallenged. Prior warnings, being stale, could not justify dismissal without a hearing.
Entitlement to 12 months' compensation
Awarded 8 months' salary (Shs. 125,120) under Section 49(1)(c) after considering the circumstances of dismissal and length of service
Section 49(1)(c) caps compensation at twelve months' gross wage, and Section 49(4) sets out factors to consider. The court considered the circumstances of dismissal and the Claimant's length of service (49 months) and found 8 months' salary reasonable.
Annual leave claim
Awarded Shs. 17,725.30 for 34 unaccounted leave days out of an entitlement of 98 days over 49 months at 2 days per month
The Respondent produced leave forms accounting for 64 leave days (30 paid in lieu, 34 taken). The entitlement was 24 days per year per the General Order (Hotel and Catering Trades) Order, now under Section 63(2) of the Labour Institutions Act. Over 49 months the Claimant earned 98 days, leaving 34 days unpaid.
Legal principles established
#- An employer must explain reasons for termination and give the employee a hearing and an opportunity to be accompanied before summary dismissal, per Section 41 of the Employment Act
- Under Section 43 the employer must prove the reasons for dismissal, failing which the dismissal is deemed unfair; under Section 45 both validity of reason and fair procedure must be proved
- An old warning letter cannot found a summary dismissal
Court orders
#- 1.Respondent to pay the Claimant 8 months' salary as compensation for unfair dismissal in the sum of Shs. 125,120
- 2.Respondent to pay one month's salary in lieu of notice in the sum of Kshs. 15,640
- 3.Respondent to pay Kshs. 17,725.30 in respect of accrued leave days
- 4.Respondent directed to regularise the Claimant's NSSF remittances within 30 days from the date of the award
- 5.Respondent directed to issue a Certificate of Service within 30 days from the date of judgment
- 6.Respondent to pay the Claimant's costs of the claim
- 7.Interest at court rates from date of judgment
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act 2007 and Labour Institutions Act 2007
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.
- Yunes Kerubo Oruta & another v George Kombo Oruta & another [2021] KECA 965 (KLR)[2021] KECA 965 (KLR)19 Feb 2021
- Mini Bakeries (Nairobi) Limited v David Ochieng Oyugi [2016] KEELRC 268 (KLR)[2016] KEELRC 268 (KLR)18 Nov 2016
Cite this brief
#Cite this brief
Caselaw, "Thomas Mbulo v Cedars Restaurant Company Limited [2014] KEELRC 947 (KLR)", Case Analysis (2014). Cause No. 2015 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/947/eng@2014-04-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.