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ELRCPartially AllowedNot stated in the judgment text provided· [2014] KEELRC 1027 (KLR)

Ruth Alinda & another v Gucokaniriria Kihato Traders and Farmers Co. Ltd [2014] KEELRC 1027 (KLR)

Employment and Labour Relations Court
6 June 2014
661 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 two employees unfairly sacked over company politics must be paid eight months' salary because no proper disciplinary process was followed.

What this practically means

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Executive summary

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The claimants, employed by the respondent as Secretary and Driver respectively, had their services terminated on 3rd December 2013 amid wrangling between the Chairman and the CEO of the company. The dismissal letters cited failure to detach themselves from the sacked CEO; the respondent alternatively alleged the claimants absconded duty on 24th October 2013, while the claimants maintained they were away on official duty with the CEO. The court framed two issues: whether the reason for termination was a fair reason within section 45 of the Employment Act, and whether a fair procedure under section 45(2)(c) was followed. On the evidence, the court found the circumstances of internal management wrangling meant the claimants were victimised for serving the disfavoured camp. It further found no evidence of a disciplinary hearing as required by section 41, and no notice to show cause was issued despite the abscondment allegation. The court concluded the claimants were wrongfully and unfairly terminated. Exercising its power under section 49(1), it awarded salary for October 2013, one month's pay in lieu of notice, eight months' salary as compensation for unfair termination, certificates of service, and costs of the suit. Judgment was delivered at Nyeri on 6th June 2014 by Abuodha N. J.

Key legal issues

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01

Whether the reason for termination was a fair reason under section 45 of the Employment Act

Holding

The reason - association with the sacked CEO while allegedly on official duty - was not a fair reason; the claimants were wrongfully and unfairly terminated.

Reasoning

The respondent alleged the claimants absconded on 24th October 2013, but the claimants contended they were away on official duty with the CEO. The dismissal letters cited failure to detach from the sacked CEO, indicating the terminations arose from internal management wrangling rather than genuine misconduct, rendering the reason unfair under section 45.

p. 2
02

Whether a fair procedure under sections 41 and 45(2)(c) was followed

Holding

No fair procedure was followed: no disciplinary hearing was proved and no notice to show cause was issued.

Reasoning

Although the dismissal letters referred to oral representations, no evidence was tendered showing a disciplinary hearing took place in accordance with section 41. The essential requirements of an opportunity to make representations, in person or through a third party, and a notice to show cause before dismissal for misconduct were absent.

p. 2

Legal principles established

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  • For a dismissal for misconduct to be fair, the employee must be accorded an opportunity to make representations, in person or through a third party, as required by section 41 of the Employment Act.
  • An allegation of absence from duty must be confronted with a notice to show cause before dismissal.
  • Employees caught up in management wrangling who are dismissed for association with a disfavoured executive are unfairly terminated.

Court orders

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  1. 1.Payment of salary for the month of October 2013
  2. 2.One month's pay in lieu of notice
  3. 3.Eight months' salary as compensation for unfair termination of employment
  4. 4.Respondent to issue the claimants with certificates of service
  5. 5.Costs of the suit to the claimants

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 45
  • Employment Actsection 45(2)(c)
  • Employment Actsection 49(1)
Jurisdiction invoked
Sections 41, 45 and 49(1) of the Employment Act (unfair termination jurisdiction of the Employment and Labour Relations Court)

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, "Ruth Alinda & another v Gucokaniriria Kihato Traders and Farmers Co. Ltd [2014] KEELRC 1027 (KLR)", Case Analysis (2014). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1027/eng@2014-06-06

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