Enos Olungo Mang’ong’o v Kenya Commercial Bank [2015] KEELRC 782 (KLR)
The bottom line
#A Kenyan court ruled KCB unfairly fired an employee by citing vague 'loss of confidence', awarding him twelve months' salary.
What this practically means
#Executive summary
#Key legal issues
#Valid reason for termination under Section 43
The Respondent failed to demonstrate a valid reason as required by Section 43 of the Employment Act and Clause A5(d) of the CBA, because the termination letter gave only 'loss of confidence' without elaboration
Although the show cause letter carried a litany of accusations, the termination letter relied solely on loss of confidence. The Court held this was an offence unknown in human resource management practice, gave the impression of a fishing expedition, and showed no consideration was given to the Claimant's representations. The employer cannot cure this at trial by leading evidence of culpability.
Procedural fairness under Section 41
The mandatory Section 41 procedure was not followed; investigative interviews and a meeting to hand over a termination letter do not satisfy it
Section 41 requires the employer to explain the reasons in a language the employee understands, allow a fellow employee or shop floor representative to be present, and hear and consider explanations. The process kicks in once a disciplinary process that may lead to disciplinary action is decided upon. There was no proof the Claimant was subjected to this mandatory procedure.
Remedies for unfair termination
Reinstatement refused; twelve months' salary in compensation awarded, taking into account length of service and the Respondent's conduct
Reinstatement is reserved for very exceptional circumstances and the time elapsed since termination made it inappropriate. In assessing compensation at twelve months' salary, the Court considered the Claimant's fifteen years of service and the Respondent's conduct in handling the case, awarding Kshs.1,580,124.00.
Claim for exemplary/aggravated damages
Claim for exemplary damages fails because they are unavailable in contracts, including employment contracts
The Claimant sought aggravated and exemplary damages for unlawful search, confiscation of documents and phones, and detention. Following Onyango J in Daniel Githinji Waiganjo v Kenpipe Cooperative Savings and Credit, the Court held exemplary damages are not available in contracts, including employment contracts, and the claim therefore failed.
Legal principles established
#- Under Section 43 of the Employment Act the employer bears the burden of proving the reason for termination, failing which the termination is unfair
- An employee facing disciplinary action is entitled to a clear statement of the exact offences; 'loss of confidence' without elaboration is insufficient
- The Court's role is to review the internal disciplinary process, not to allow the employer to salvage a defective process by adducing evidence at trial
- The Section 41 procedure is triggered once an employer decides to subject an employee to a disciplinary process, and is distinct from investigative interviews
- Exemplary damages are not available in contracts, including employment contracts
Court orders
#- 1.Award of Kshs.1,580,124.00 to the Claimant being twelve (12) months' salary in compensation for unfair termination of employment
- 2.The Respondent to pay the costs of the case
- 3.The award to attract interest at court rates from the date of the award until payment in full
- 4.The Respondent to issue the Claimant with a certificate of service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Labour Relations Act (first-instance cause)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutua v St. Mary’s Mission Hospital (Cause E340 of 2022) [2023] KEELRC 3089 (KLR)[2023] KEELRC 3089 (KLR)29 Nov 2023
- Sandra M. Waswa v Article 19: Global Campaign for Free Expression [2022] KEELRC 625 (KLR)[2022] KEELRC 625 (KLR)23 Feb 2022
- Isaac Lumumba Omega v John Kahita t/a Karen Auto Mart [2019] KEELRC 503 (KLR)[2019] KEELRC 503 (KLR)1 Oct 2019
Cite this brief
#Cite this brief
Caselaw, "Enos Olungo Mang’ong’o v Kenya Commercial Bank [2015] KEELRC 782 (KLR)", Case Analysis (2015). Cause No 1994 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/782/eng@2015-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.