Catherine Kathini Mulatya v Inncor Kenya Limited [2016] KEELRC 5 (KLR)
The bottom line
#A Kenyan employer who fired an employee for theft without giving her a hearing lost the case and paid compensation, because a written statement is not a hearing.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in summary dismissal
The dismissal was procedurally unfair because the Claimant was not given a hearing under section 41; a written statement is not a substitute for a hearing.
Section 44 permits summary dismissal but only after the mandatory safeguards in section 41(2) are observed, including hearing and considering the employee's representations in the presence of a fellow employee. The employer only asked the Claimant to write a statement. The court held these provisions mandatory unless exceptional circumstances are demonstrated, none of which were shown, rendering the dismissal procedurally unfair under section 45.
Substantive justification for dismissal on grounds of theft
The dismissal was not substantively justified because the stipulated procedures allegedly breached were not set out or made available for reference.
The dismissal letter alleged the Claimant dispatched an order without a docket, contrary to stipulated procedures. The court found the procedures were not set out, the alleged misconduct was subjective, there was no proof of loss, and no defence witness was called. The dismissal therefore failed to comply with sections 44, 41 and 45 of the Employment Act.
Remedies for unfair termination
Compensation of six months' gross pay under section 49 of the Employment Act, amounting to Kshs. 99,420.00, was appropriate, with costs at 50%.
Having found unfair termination, and taking into account the parties' consent settlement on notice pay and September 2013 salary, the court exercised its discretion under section 49 to award six months' gross pay. The Claimant's monthly salary was Kshs. 12,570.00, and costs were awarded at 50%.
Legal principles established
#- A written statement by an employee is not a substitute for the hearing required under section 41 of the Employment Act; without notice and a hearing before a representative, the dismissal is procedurally unfair.
- Sections 41 and 44 of the Employment Act are mandatory; an employer must demonstrate exceptional circumstances justifying departure from notice and hearing requirements.
- An employer alleging breach of stipulated procedures must make available the standards or procedures allegedly violated; a dismissal based on unspecified procedures is subjective and unjustified.
Court orders
#- 1.Declaration that the termination of employment was unlawful and unfair
- 2.Compensation awarded to the Claimant at Kshs. 99,420.00 (six months' gross pay under section 49 of the Employment Act)
- 3.Costs awarded to the Claimant at 50%
- 4.Payment of Kshs. 25,140 by consent in respect of payment in lieu of notice and September 2013 salary
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Kathini Mulatya v Inncor Kenya Limited [2016] KEELRC 5 (KLR)", Case Analysis (2016). Cause No. 1954 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/5/eng@2016-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.