Moses Njenga v Beshmon Limited [2016] KEELRC 1036 (KLR)
The bottom line
#A Kenyan court ruled a security guard's dismissal unfair because his employer never gave him a hearing or a termination letter.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was afforded a fair disciplinary procedure before termination
The termination was unfair because the claimant was neither given a hearing nor issued with a termination letter, contrary to sections 41 and 45 of the Employment Act.
Although the respondent alleged that the claimant neglected his duty by entertaining strangers and leaving his work station unmanned, the court found that the respondent conceded no meeting was ever called to discuss the claimant's conduct or allow him to defend himself alone or through a representative. The claimant was also never issued with a termination letter. The absence of both a hearing and a termination letter breached the procedural requirements of the Employment Act, rendering the dismissal unfair irrespective of the merits of the allegations.
Whether the allegations against the claimant constituted a valid reason for dismissal
Neglect of duty could have been a good reason for dismissal, but the unfair procedure defeated the dismissal.
The court accepted arguendo that neglect of duty, as alleged - entertaining stampers and passersby and leaving the gate unmanned - may well have justified dismissal. However, because the process must be carried out through a fair procedure and the claimant was denied a hearing, the dismissal could not stand. The court thus separated the substantive reason from the procedural fairness requirement, in line with sections 41 and 45 of the Employment Act.
Legal principles established
#- A termination of employment that does not conform to the Employment Act as to reasons and procedure is wrongful and/or unfair.
- Even where there is a valid reason for dismissal, the dismissal must still be carried out through a fair procedure, including an opportunity to be heard under section 41 of the Employment Act.
Court orders
#- 1.Award of Kshs.1,100.00 being salary for 3 days worked in July
- 2.Award of Kshs.11,000.00 being one month's pay in lieu of leave
- 3.Award of Kshs.11,000.00 being one month's pay in lieu of notice
- 4.Award of Kshs.66,000.00 being six months' salary as compensation for unfair dismissal (total award Kshs.89,100.00)
- 5.Issuance of a certificate of service to the claimant
- 6.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Njenga v Beshmon Limited [2016] KEELRC 1036 (KLR)", Case Analysis (2016). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1036/eng@2016-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.