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ELRCPartially AllowedCause Number 310 of 2013· [2015] KEELRC 1119 (KLR)

Mohamed Hassan Mkoma v Kenya Marine Contractors [2015] KEELRC 1119 (KLR)

Industrial Court of Kenya
13 May 2015
JRJames Rika
1,107 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ruled that locking out an employee without charges or a hearing was unfair termination, awarding him 12 months' salary.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2010 as a Truck Driver and later as a Crane Operator under three-month renewable contracts, was accused of stealing 180 litres of diesel and charged in court on 8th May 2012. After being granted bail, he reported to work on 9th May 2012 but was denied entry by guards and refused access to the Human Resource Manager. He was never issued a termination letter, never taken through a disciplinary process, and never paid terminal dues. He was acquitted of the criminal charge on 6th June 2013. The Respondent contended the Claimant was on probation, invoking Section 42(1) of the Employment Act 2007, and alternatively that it acted fairly in terminating an employee reasonably suspected of a criminal offence against his employer's property. The Respondent, however, gave no evidence at trial. The Court found the Claimant was not on probation but in continuous employment since 2010, so Section 42(1) did not apply. It held the Respondent failed its obligations under Sections 41, 43 and 45 of the Employment Act 2007: no charges, no investigation, no hearing, and no formal termination - merely a lock-out. Termination was unfair on both substantive and procedural grounds. Although the Claimant pleaded compensation under the Labour Institutions Act 2007, the Court noted Section 15 of that Act had been repealed by Section 31 of the Industrial Court Act 2011, and instead awarded compensation under Section 49 of the Employment Act 2007 and Section 12 of the Industrial Court Act. The Court declared the termination unfair and ordered the Respondent to pay 12 months' salary (Kshs.360,000) within 30 days, plus costs to the Claimant.

Key legal issues

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01

Whether Section 42(1) of the Employment Act 2007 (probationary contracts) applied

Holding

The Claimant was not on probation; he was in continuous employment from 2010 on short-term renewable contracts, so Section 42(1) did not apply.

Reasoning

The Claimant had been employed since 2010 as a Truck Driver and later as Truck Driver-cum-Crane Operator under short-term renewable contracts. The Respondent's assertion of probation was unsupported, and the Claimant's evidence of prior contracts and continuous service stood unrebutted as the Respondent gave no evidence.

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02

Whether the termination was unfair

Holding

The termination was unfair both substantively and procedurally; the Respondent failed its obligations under Sections 41, 43 and 45 of the Employment Act 2007.

Reasoning

The Claimant was denied entry to the workplace after being charged, was never taken through a disciplinary process, received no charges, no investigation was conducted, and no termination letter issued. The Respondent opted to give no evidence and its pleadings failed to justify termination. The lock-out amounted to an unfair termination.

p. 3
03

Under which statute is compensation granted

Holding

Compensation lies under Section 49 of the Employment Act 2007 and Section 12 of the Industrial Court Act, not the repealed Section 15 of the Labour Institutions Act 2007.

Reasoning

Although the Claimant pleaded compensation under the Labour Institutions Act 2007, Section 15 of that Act had been repealed by Section 31 of the Industrial Court Act 2011 and was not in operation at the time of the lock-out. The Court therefore awarded compensation under the correct statutory provisions despite the mispleading.

p. 3

Legal principles established

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  • An employer who locks out an employee without notice, charges or a hearing fails in its obligations under Sections 41, 43 and 45 of the Employment Act 2007
  • Compensation for unfair termination is granted under Section 49 of the Employment Act 2007 and Section 12 of the Industrial Court Act, not the repealed Section 15 of the Labour Institutions Act

Court orders

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  1. 1.A declaration that the termination was unfair
  2. 2.The Respondent shall, within 30 days of the Award, pay the Claimant 12 months' salary in compensation at Kshs.30,000 per month, total Kshs.360,000
  3. 3.Costs to the Claimant

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
  • Labour Institutions Act 2007Section 15
  • Industrial Court Act 2011Section 31
  • Employment Act 2007Section 42(1)
  • Employment Act 2007Sections 41, 43 and 45
  • Employment Act 2007Section 49
  • Industrial Court Act 2011Section 12
Jurisdiction invoked
Section 12 of the Industrial Court Act 2011; Industrial Court (Procedure) Rules 2010, Rule 27(1)(a)

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, "Mohamed Hassan Mkoma v Kenya Marine Contractors [2015] KEELRC 1119 (KLR)", Case Analysis (2015). Cause Number 310 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1119/eng@2015-05-13

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