Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 315 of 2014· [2015] KEELRC 82 (KLR)

Douglas Macharia Waweru v Crested Acres Investments Ltd (Cause 315 of 2014) [2015] KEELRC 82 (KLR)

Employment and Labour Relations Court
11 December 2015
RSRadido Stephen
1,810 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled an employer's dismissal unfair because it skipped the mandatory hearing and notice required before firing an employee.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent as Operations Manager from 1 March 2013, was summarily dismissed on 4 May 2014 verbally by the Managing Director over bounced cheques issued to East African Breweries Ltd, with a written letter emailed about a week later. He claimed unfair termination, unpaid overtime and unpaid leave. The Court identified two issues: whether the dismissal was unfair, and appropriate remedies. Applying section 47(5) of the Employment Act, 2007, the Court found the Claimant discharged the initial burden, shifting it to the Respondent. The Court held that under section 41, the employer must inform the employee of contemplated charges, allow preparation and a hearing, and consider representations before summary dismissal. Although the Respondent alleged performance meetings, the Court found these addressed general business operations and did not constitute a disciplinary hearing; there was no show cause notice, and the Managing Director unilaterally decided dismissal without presenting the Claimant before the directors. The Court, relying on its earlier decision in Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd, held that compliance with both procedural fairness and substantive reasons is mandatory, and failure of either renders dismissal unfair notwithstanding a contractual provision for termination on notice. It was therefore unnecessary to consider whether the reasons were valid. The dismissal was held procedurally unfair. Compensation of 3 months' gross wages (Kshs 190,500/-) was awarded based on the unchallenged gross pay of Kshs 63,500/- and length of service. Unpaid leave was declined because the contract prohibited carrying leave forward without permission, which was not demonstrated; unpaid overtime was declined as no contractual or statutory basis was laid and managers are not by practice paid overtime. The Claimant was awarded costs.

Key legal issues

#
01

Procedural fairness in summary dismissal

Holding

The dismissal was procedurally unfair because the Respondent failed to comply with section 41 of the Employment Act, 2007 - no show cause notice and no hearing were afforded.

Reasoning

The Managing Director unilaterally decided to terminate without summoning the Claimant before the directors and admitted there was no show cause notice. Meetings held to discuss general performance did not satisfy the statutory requirements of a hearing as part of a disciplinary process, and the Claimant was never informed dismissal was contemplated.

p. 4
02

Burden of proof under section 47(5)

Holding

The Claimant discharged the initial burden of showing unfair termination, shifting the burden to the Respondent, which failed to demonstrate procedural fairness.

Reasoning

Once the employee establishes facts of unfair termination under section 47(5), the burden shifts to the employer. The employer bears the statutory obligation to show compliance with sections 41, 43 and 45; failure on procedure alone suffices for a finding of unfairness, making it unnecessary to consider substantive validity of reasons.

p. 2
03

Remedies for unfair dismissal

Holding

Compensation awarded at 3 months' gross wages (Kshs 190,500/-); unpaid leave and overtime claims declined.

Reasoning

Compensation is a primary though discretionary remedy, assessed considering length of service. Annual leave is a statutory right but was not carried forward with permission; overtime had no contractual or statutory basis and managers are not by practice paid overtime.

p. 4

Legal principles established

#
  • Compliance with both procedural fairness and proof of substantive reasons are mandatory; failure in either renders termination unfair notwithstanding a contractual provision for termination on notice.
  • In a claim for unfair termination on grounds of misconduct, poor performance or incapacity, it is the employer who must demonstrate observance of procedural fairness under section 41.

Court orders

#
  1. 1.Respondent to pay the Claimant 3 months gross wages as compensation of Kshs 190,500/-
  2. 2.Claimant to have costs

Authorities

#

Legislation

  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007section 36
  • Employment Act, 2007section 44
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45

Cases cited (1)

  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Douglas Macharia Waweru v Crested Acres Investments Ltd (Cause 315 of 2014) [2015] KEELRC 82 (KLR)", Case Analysis (2015). Cause No 315 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/82/eng@2015-12-11

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