David Adema Lugongo v New Kenya Co-operative Creameries Limited [2015] KEELRC 658 (KLR)
The bottom line
#A Kenyan court awarded a dismissed employee Kshs.759,000 because his employer could not prove the misconduct allegations or show he received a fair disciplinary hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons for the Claimant's dismissal
The allegations of fraudulent deals and misuse of company resources were not established on evidence
The dismissal letter cited fraudulent deals, misuse of company resources and breach of company regulations. The Respondent annexed an internal report, but the legal officer noted that corroborating statements from two persons were needed and these were never taken. The Claimant's supervisor and the investigating team were not called as witnesses, leaving a gap in the accusations. The allegations, if proved, would have warranted dismissal, but they were not established.
Whether due process was followed before dismissal
No fair hearing under Section 41 of the Employment Act was proved; the dismissal was procedurally unfair
The Claimant testified that a disciplinary committee sat once and ended in disarray without reconvening. No minutes of a disciplinary hearing were exhibited and there was no proof a hearing took place. The Claimant denied being given a hearing, shifting the onus to the Respondent, which failed to discharge it. In the absence of a proper hearing the dismissal was unfair within the meaning of Section 45 of the Employment Act.
What remedies the Claimant is entitled to
Notice pay, house allowance and 12 months' salary as damages for unlawful termination awarded; service pay refused
The court awarded three months' salary in lieu of notice per the appointment letter, house allowance computed at 15% of basic salary for 15 months, and the equivalent of 12 months' salary as damages for unlawful termination. Service pay was denied because the Claimant contributed to NSSF. The surcharge claim failed for want of proof of payment. A certificate of service was ordered.
Legal principles established
#- The burden lies on the employer to prove the reasons for termination, failing which the termination is unfair
- Before terminating an employee for misconduct, the employer must explain the reasons and hear the employee's representations as required by Section 41 of the Employment Act
Court orders
#- 1.3 months salary in lieu of notice: 3 x 44,000 = Kshs.132,000
- 2.House allowance at 15% of basic salary for 15 months = Kshs.99,000
- 3.12 months salary as damages for unlawful termination: 12 x 44,000 = Kshs.528,000
- 4.Total award of Kshs.759,000 less statutory deductions
- 5.Claim of surcharge not awarded as there is no proof that it was effected
- 6.Respondent to issue Claimant with a Certificate of Service
- 7.Respondent to meet costs of the suit
- 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, "David Adema Lugongo v New Kenya Co-operative Creameries Limited [2015] KEELRC 658 (KLR)", Case Analysis (2015). Cause No. 2297 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/658/eng@2015-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.