Benard Mutunga Kiio & Charles Mutuku Mbatha v Kenya Aerotech Limited [2015] KEELRC 560 (KLR)
The bottom line
#Kenya's Employment Court ruled that firing workers without a hearing or solid proof is unlawful, awarding two mechanics compensation and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons to terminate the Claimants' services
The reasons alleged (negligence, carelessness, rudeness, being uncooperative) did not amount to grounds justifying summary dismissal.
The Respondents alleged that the 1st Claimant was found sleeping on duty and that the 2nd Claimant was careless, causing machine breakdowns and losses. However, the report alluding to negligence and inefficiency was not shown to have been made after the Claimants were heard. The court found the alleged reasons, if at all established, did not warrant summary dismissal, and the employer bore the burden of proving validity under Section 45 of the Employment Act.
Whether due process was followed before termination
No disciplinary hearing was convened and the Claimants were neither warned nor heard, contrary to Section 41 of the Employment Act, 2007; the terminations were unfair and unjustified under Section 45(1) and (2).
RW1, the Respondent's head of Security, conceded in evidence that no disciplinary hearing was ever convened for the Claimants. Section 41 requires an employer to explain the reasons for termination to the employee and to hear and consider any representations before termination on grounds of misconduct or poor performance. Neither Claimant was given a hearing or warning, so both substantive fairness and procedural fairness failed.
Whether the Claimants are entitled to the remedies sought
The Claimants were awarded salary for the unexpired period of their contracts, one month's leave pay, three months' salary as compensation for unfair termination, and certificates of service.
Having found the terminations unfair, the court exercised its discretion to award each Claimant salary for the unexpired portion of the contract that was to end on 31/12/2010, one month's leave pay, and the equivalent of three months' salary as compensation for unlawful termination, plus a Certificate of Service for each Claimant and costs of the suit.
Legal principles established
#- An employer must, before terminating employment on grounds of misconduct, poor performance or physical incapacity, explain the reasons to the employee and hear and consider any representations in accordance with Section 41 of the Employment Act.
- A termination is unfair where the employer fails to prove a valid and fair reason and that fair procedure was followed, under Section 45 of the Employment Act.
Court orders
#- 1.1st Claimant awarded salary for unexpired period of contract of Kshs. 75,000/=, leave for one month of Kshs. 15,000/= and 3 months' salary compensation for unlawful termination of Kshs. 45,000/=, totalling Kshs. 135,000/=
- 2.2nd Claimant awarded salary for unexpired period of Kshs. 80,136/=, leave for one month of Kshs. 20,034/= and 3 months' salary compensation for unlawful termination of Kshs. 60,102/=, totalling Kshs. 160,272/=
- 3.Each Claimant be issued with a Certificate of Service
- 4.Respondents to pay costs of this suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41 and 45 invoked)
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.
- Patricia Wangui v Standard Chartered Bank [2019] KEELRC 2055 (KLR)[2019] KEELRC 2055 (KLR)8 Mar 2019
- Nelson Okello Gunga v BIDCO Oil Refineries Limited [2018] KEELRC 206[2018] KEELRC 206 (KLR)20 Dec 2018
Cite this brief
#Cite this brief
Caselaw, "Benard Mutunga Kiio & Charles Mutuku Mbatha v Kenya Aerotech Limited [2015] KEELRC 560 (KLR)", Case Analysis (2015). Cause No. 96 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/560/eng@2015-08-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.