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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause 414 of 2015· [2016] KEELRC 1030 (KLR)

Robert Munyoki Kimanzi v C.L.A [2016] KEELRC 1030 (KLR)

Employment and Labour Relations Court of Kenya
24 June 2016
1,057 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 upheld a summary dismissal for gross misconduct because the employer proved both a valid reason and a fair disciplinary hearing.

What this practically means

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Executive summary

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The Claimant was employed by the Respondent as Operations Manager and was dismissed for gross misconduct, namely sexual harassment of female staff and soliciting bribes from suppliers. He sued for separation dues plus compensation for unfair dismissal, denying the misconduct and claiming he was never accorded a fair hearing. At the hearing on 15.2.2016 the parties recorded a settlement on the claims for leave, salary, off days and public holidays, totalling Kshs. 46,307 less Kshs. 24,000 in loans, and agreed to dispose of the remaining claims (salary in lieu of notice, compensation for unfair termination and acting allowance) by written submissions. The Court framed four issues: valid and fair reason, fair hearing, unfairness, and reliefs. It found that the disciplinary hearing proceedings of 14.4.2015, signed by the Claimant and containing testimony from the affected staff and a supplier, proved gross misconduct on a balance of probability, particularly as the Claimant never denied soliciting bribes and filed no reply to the defence or oral evidence. Relying on sections 43(2), 44(3) & (4) and 45(2) of the Employment Act, the Court held the dismissal was founded on a valid reason and followed a fair hearing, and was therefore fair. The claims for salary in lieu of notice and compensation under section 49(1) failed, as did the acting allowance claim for want of particulars and evidence. Only the agreed settlement sum of Kshs. 22,307 was awarded, plus one quarter of the costs of the Suit. The judgment was delivered at Mombasa on 24 June 2016 by Onesmus Makau, Judge.

Key legal issues

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01

Valid and fair reason for summary dismissal

Holding

Gross misconduct by sexually harassing female staff and soliciting bribes from suppliers entitled the Respondent to summarily dismiss the Claimant under section 44(3) & (4) of the Employment Act

Reasoning

The Claimant denied sexual harassment in his statement but never denied soliciting bribes. The Respondent filed signed disciplinary hearing proceedings dated 14.4.2015 with testimony from staff and a supplier, which the Claimant signed and in which he apologised. The Claimant filed no reply to the defence and gave no oral evidence, so the Court found the gross misconduct proved on a balance of probability.

p. 2
02

Fair hearing before dismissal

Holding

The Claimant was accorded a fair hearing; he attended, faced his accusers and defended himself, and did not fault the proceedings

Reasoning

The disciplinary hearing of 14.4.2015 was documented and signed by the Claimant to confirm attendance and accuracy. He never denied attending nor faulted the proceedings, so the procedural fairness requirement under section 45 was satisfied.

p. 2
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Whether the dismissal was unfair

Holding

The dismissal was fair since both a valid reason and fair procedure were proved

Reasoning

Section 45(2) requires the employer to prove both valid reason and fair procedure. Both were established, so the termination was fair and the claims for notice pay and compensation under section 49(1) failed.

p. 2
04

Acting allowance claim

Holding

Dismissed for want of particulars and evidence; the Court could not determine the period of acting

Reasoning

The period of acting as General Manager was not pleaded and no evidence supported it. The letter of 24.10.2014 predated the pleaded commencement date of 1.12.2014, and even assuming genuineness the duration of acting could not be established.

p. 2

Legal principles established

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  • An employer is entitled to make a subjective decision on whether an employee's conduct constitutes a valid reason for summary dismissal, based on what the employer genuinely believed at the time of termination
  • Termination is unfair only if the employer fails to prove a valid and fair reason and a fair procedure
  • A party who does not reply to a defence or tender oral evidence leaves the court to find for the defence on a balance of probability

Court orders

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  1. 1.The Respondent to pay the Claimant Kshs. 22,307 being the agreed settlement sum of Kshs. 46,307 less Kshs. 24,000
  2. 2.The Respondent to pay one quarter of the costs of the Suit

Authorities

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Legislation

  • Employment Actsection 43(2)
  • Employment Actsection 44(3) & (4)
  • Employment Actsection 45(2)
  • Employment Actsection 49(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes, limited to laws, pleadings and evidence before it

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, "Robert Munyoki Kimanzi v C.L.A [2016] KEELRC 1030 (KLR)", Case Analysis (2016). Cause 414 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1030/eng@2016-06-24

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