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ELRCPartially AllowedCause No. 1530 of 2013· [2015] KEELRC 266 (KLR)

Elizabeth Murugi Mwaura Weya v Marie Stopes Kenya Limited [2015] KEELRC 266 (KLR)

Employment & Labour Relations Court
14 October 2015
NMNzioki wa Makau
2,450 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 awarded an ex-employee over Kshs 4.8 million because Marie Stopes Kenya fired her without a hearing or proof of valid reasons.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent from 1st February 2007 and rising to director people management on a gross monthly salary of Kshs. 360,000/-, sued for wrongful and unfair termination following her summary dismissal on 6th June 2012. She claimed notice pay, unpaid days worked in June 2012, untaken annual leave, twelve months' gross salary as compensation, and in the alternative reinstatement or re-engagement. The Respondent defended the suit, asserting the dismissal was for gross misconduct justified under the Employment Act, and blaming the Claimant for a plethora of suits filed against it during her tenure, while opposing reinstatement as infeasible. The Claimant was the sole witness; the Respondent, having indicated it would call no witness, was refused an adjournment to adduce witness evidence. The court found that none of the three suits exhibited by the Respondent referred to the Claimant or attributed the suits to her, and that the reason was absent from the dismissal letter. Critically, no hearing was conducted as required by Section 41 of the Employment Act, and relying on Ann Maina v JKUAT, the court held the dismissal unlawful and unfair in both substance and procedure. Reinstatement was declined as improper in the circumstances. The court awarded notice pay of Kshs. 360,000/-, Kshs. 72,000/- for six days worked in June 2012, Kshs. 144,000/- for twelve days' untaken leave, twelve months' compensation of Kshs. 4,320,000/-, all subject to statutory deductions, plus costs and a certificate of service.

Key legal issues

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01

Procedural fairness in summary dismissal

Holding

The dismissal was unlawful and unfair because the Claimant was not given a hearing as required by Section 41 of the Employment Act

Reasoning

The court found that no hearing was held before the summary dismissal. The Respondent did not deny that no hearing took place, only asserting the dismissal was lawful. The failure to follow the mandatory procedure under Section 41 rendered the dismissal unlawful and unfair, and the court relied on Ann Maina for the proposition that non-compliance with section 41 renders disciplinary action outrightly unfair.

p. 3
02

Validity of reasons for termination

Holding

The reasons advanced (suits against the Respondent attributed to the Claimant) were not proved; the exhibited suits made no reference to the Claimant

Reasoning

The Respondent alleged a plethora of suits arose from the Claimant's carelessness, but in none of the three suits exhibited was the Claimant named or blamed. The reasons were also absent from the dismissal letter. The court therefore found the termination improper and entitled the Claimant to notice pay, days worked and untaken leave.

p. 3
03

Appropriate remedies

Holding

The Claimant was awarded notice pay, days worked, untaken leave, and 12 months' gross salary as compensation, subject to statutory deductions

Reasoning

Since reinstatement or re-engagement was improper in the circumstances, the court granted relief under Sections 49, 50 and 51 of the Employment Act, following the approach in Ngigi and Kilifi Plantation where 12 months' compensation was awarded for unfair termination in both substance and procedure.

p. 3

Legal principles established

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  • Non-compliance with section 41 of the Employment Act renders any disciplinary action outrightly unfair
  • An employer who abridges section 41 procedural requirements effects an unlawful and unfair dismissal

Court orders

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  1. 1.Notice pay of Kshs. 360,000/-
  2. 2.Pay for 6 days worked in June 2012 of Kshs. 72,000/-
  3. 3.Leave earned of 12 days Kshs. 144,000/-
  4. 4.12 months compensation for unlawful and unfair dismissal of Kshs. 4,320,000/-
  5. 5.Sums in (a), (b), (c) and (d) to be subject to statutory deductions as provided for in Section 49 of the Employment Act
  6. 6.Costs of the suit to the Claimant
  7. 7.Certificate of Service in terms of Section 51 of the Employment Act

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 41(1)
  • Employment ActSection 41(2)
  • Employment ActSection 3(1)
  • Employment ActSection 17(1)
  • Employment ActSection 74
  • Employment ActSection 49
  • Employment ActSection 50
  • Employment ActSection 51

Cases cited (3)

  • Stephen Ng'ang'a Ngigi v Marie Stopes Kenya Ltd
    Cause No. 1710 of 2010
  • Kenya Plantation & Agricultural Workers Union v Kilifi Plantation Limited
    [2013] eKLR
  • Ann Maina & 2 Others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (dispute framed as wrongful/unfair termination of employment)

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, "Elizabeth Murugi Mwaura Weya v Marie Stopes Kenya Limited [2015] KEELRC 266 (KLR)", Case Analysis (2015). Cause No. 1530 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/266/eng@2015-10-14

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