Elkana Sweta Makokha v Bob Morgan Services Limited [2014] KEELRC 1505 (KLR)
The bottom line
#Even when an employee's firing is justified, Kenyan employers must still follow fair hearing procedures or the dismissal becomes unfair.
What this practically means
#Executive summary
#Key legal issues
#Justifiability of the reason for dismissal
The Respondent proved valid reasons under section 43: the Claimant's mishandling of firearms and failure to report incidents to the MD were gross dereliction of duty
Section 43(1) places on the employer the burden of proving the reasons for termination. The court found the two firearm incidents - arrest in Meru and surrender at Embakasi - grave operational matters which any employee, however senior, should have reported. It was immaterial that the matters were resolved and no charge ensued; the firearm leaving the Claimant's custody justified disciplinary action.
Procedural fairness under section 41
The dismissal was procedurally flawed because the Claimant was denied his section 41(1) right to have a companion of his choice and no evidence of the hearing proceedings or right of appeal existed
The Claimant brought his wife and house help as witnesses; these are not persons contemplated by section 41(1). The employer had a duty to explain this and offer him the option of choosing a fellow employee, which it did not do. The colleagues present were not of the Claimant's choice, and the absence of hearing minutes and an appeal notification compounded the unfairness.
Authenticity of the employment contract
The Claimant tampered with his copy of the contract to inflate the notice period; the Respondent's copy was adopted as the true contract
The Claimant admitted inserting a page to read three months' notice instead of one month. The court found this manipulation spoke to his character and trustworthiness as a witness and preferred the Respondent's original document as the true record of the agreement between the parties.
Remedies under section 49
Compensation assessed at one month's gross salary of Kshs.414,993, plus one month's notice pay and confirmation of the 9 days' pay already computed
Given the procedural flaw but valid reasons for dismissal, a modest award of one month's salary as compensation was appropriate under section 49(1)(c). Notice pay was awarded because the Respondent admitted willingness to pay one month in lieu. Days worked were payable and the Respondent's higher computation was confirmed.
Legal principles established
#- Even in serious cases falling under section 44 of the Employment Act, an employee is entitled to a hearing conducted per section 41
- The employee's right under section 41(1) to a companion of his choice cannot be compromised by the employer substituting its own choice
- Failure to follow section 41, which is mandatory, renders the employer's decision unfair
- An employee who joins a Sacco by authorising deductions is estopped from claiming full savings on termination without accounting for Sacco dues
- Seniority does not exempt an employee from due process in disciplinary proceedings
Court orders
#- 1.A declaration that there was a procedural flaw in the summary dismissal of the claimant
- 2.Compensation equivalent to one month's salary at Kshs.414,993.00
- 3.Notice pay at Kshs.414,993.00
- 4.Nine days worked amounting to Kshs.194,103.33
- 5.The amounts to be paid less what the Claimant has received and/or been deposited into his bank account
- 6.Each party to bear their own costs
- Jurisdiction invoked
- Jurisdiction as the Industrial Court of Kenya under the Industrial Court Act over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elkana Sweta Makokha v Bob Morgan Services Limited [2014] KEELRC 1505 (KLR)", Case Analysis (2014). Cause No 986 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1505/eng@2014-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.