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ELRCPartially AllowedCause No 196 of 2015· [2016] KEELRC 383 (KLR)

Kadenge Karisa Konde v Coast Clay Works Limited [2016] KEELRC 383 (KLR)

Employment and Labour Relations Court
18 November 2016
JRJames Rika
1,956 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court found a driver's dismissal justified but the process unfair, awarding him just two months' salary.

What this practically means

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Executive summary

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The Claimant, a Driver employed by the Respondent from 19th August 2014 on successive monthly contracts aggregating about 7 months of service, was summarily dismissed on 23rd March 2015 over incidents of reckless driving, including driving through the wrong gates of Mombasa Golf Club and at high speed outside the Respondent's Administration Block. He claimed one month's notice pay, a year's annual leave pay, underpayment based on an asserted market salary of Kshs. 25,000, twelve months' compensation for unfair termination, and general damages, totalling Kshs. 3,014,744. The Respondent conceded the employment but asserted valid grounds and maintained that he was paid above the minimum wage, took leave, and was dismissed justifiably. The Court found the reasons for dismissal valid and correctly anchored in Section 44(4)(c) of the Employment Act, the incidents being successive, undisputed, and within the currency of warnings. However, the procedure was unfair: no show-cause or hearing was afforded under Section 41, and the warning system mixing verbal and written warnings was defective. Underpayment failed because wage levels are set by wage instruments, and the Claimant earned above the applicable minimum wage; annual leave pay failed under Section 28(1)(a) since he had not served 12 months and had taken 7 days' leave; notice pay failed because summary dismissal was justified; and 12 months' compensation was excessive given only 7 months' service under renewable contracts. The Court awarded the equivalent of 2 months' gross salary, Kshs. 32,960, as compensation for unfair termination, with no order on costs. Judgment delivered at Mombasa on 18th November 2016 by James Rika, Judge.

Key legal issues

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01

Validity of grounds for summary dismissal

Holding

Termination was based on valid grounds - repeated reckless driving incidents within the currency of valid warnings justified summary dismissal under Section 44(4)(c).

Reasoning

The dismissal letter cited three incidents: careless high-speed driving on 21st March 2015, failure to report dents on the vehicle, and driving through the wrong Golf Club gates on 7th January 2015. The Claimant did not seriously dispute these incidents, having acknowledged written and verbal warnings by signing the warning letter and complaint register. The incidents occurred successively within the validity period of the warnings, satisfying Section 44(4)(c) of the Employment Act.

p. 3
02

Fairness of procedure

Holding

Procedure was unfair - the Claimant was not given an opportunity to show cause or defend charges as required by Section 41.

Reasoning

The warning system was defective, mixing verbal and written warnings without explanation, making it difficult to identify the last warning before termination. More fundamentally, there was no record the Claimant was asked to show cause why disciplinary action should not be taken. Warnings do not replace the Section 41 procedural requirements of laying out charges and hearing the employee.

p. 4
03

Quantum of compensation for unfair termination

Holding

Minimal compensation of 2 months' gross salary (Kshs. 32,960) awarded given 7 months' cumulative service under short renewable contracts.

Reasoning

Although termination was procedurally unfair, the Claimant had served only 7 months under successive one-month renewable contracts, the last expiring about a week after dismissal. He did not testify to expecting automatic renewal. Section 50 considerations of length of service and expected duration of employment do not support 12 months' compensation, warranting only a minimal award.

p. 4
04

Annual leave entitlement

Holding

Claim rejected - Section 28(1)(a) entitlement arises only after 12 consecutive months of service.

Reasoning

The Claimant served only 7 months and had not completed a full year of consecutive service. He took 7 days' leave in February 2015 on his own application, which showed a nil leave balance. The employer had no statutory obligation to grant annual leave before completion of one year of service.

p. 3

Legal principles established

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  • Warnings do not substitute for the procedural requirements of Section 41 of the Employment Act; an employee must be given charges and an opportunity to defend them.
  • Wage entitlements are determined by wage instruments, not individual employee expectations.
  • In awarding compensation for unfair termination, the court considers length of service and the period employment might have continued.

Court orders

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  1. 1.Declaration that termination was based on valid ground but lacking in fairness of procedure
  2. 2.Respondent to pay the Claimant 2 months' gross salary at Kshs. 32,960 in compensation for unfair termination
  3. 3.No order on the costs

Authorities

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Legislation

  • Employment ActSection 28(1)(a)
  • Employment ActSection 44(4)(c)
  • Employment ActSection 41
  • Employment ActSection 50
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (implied; no specific provision stated)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kadenge Karisa Konde v Coast Clay Works Limited [2016] KEELRC 383 (KLR)", Case Analysis (2016). Cause No 196 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/383/eng@2016-11-18

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