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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 483 of 2015· [2016] KEELRC 1143 (KLR)

Moses Wanjima Mwangi v Vert Limited [2016] KEELRC 1143 (KLR)

Employment and Labour Relations Court
31 May 2016
1,180 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employers must complete a full disciplinary process before firing for misconduct, or the dismissal is unfair and compensation follows.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Farm Manager from 16th February 2009 at a monthly salary of Kshs. 40,000, was summarily dismissed on 1st October 2013 for alleged gross misconduct after extending his annual leave by two days to cover a delayed commencement and a public holiday falling within the leave period. The Respondent entered appearance but filed no defence, and the matter proceeded as an undefended claim following an order by Abuodha J, with the Court hearing the Claimant ex parte on 30th March 2016. Framing two issues - whether the dismissal was justifiable and fair, and whether the Claimant was entitled to the remedies sought - the Court held that although gross misconduct is a lawful ground for dismissal, it must be proved under Section 43 of the Employment Act, 2007. The Court found that the Respondent did not allow the disciplinary process to run full circle as contemplated under Section 41 and did not follow due procedure, rendering the dismissal substantively and procedurally unfair. The Court awarded six months' salary (Kshs. 240,000) as compensation, taking into account the Claimant's length of service and the Respondent's conduct in the disciplinary process, plus one month's salary in lieu of notice (Kshs. 40,000), totalling Kshs. 280,000. The claims for underpaid salaries, leave and leave travelling allowance, gratuity, terminal benefits and general damages were not proved and were dismissed. The Claimant was awarded costs, and the award attracts interest at court rates from the date of the award until payment in full.

Key legal issues

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01

Whether the Claimant's dismissal was justifiable and fair

Holding

The dismissal was substantively and procedurally unfair because the Respondent failed to follow due procedure and did not allow the disciplinary process under Section 41 of the Employment Act to run full circle.

Reasoning

Although gross misconduct constitutes a lawful reason for dismissal, it must be proved under Section 43 of the Employment Act. The Respondent dismissed the Claimant after an exchange of correspondence over an alleged extension of leave, but without according him a full disciplinary process. The failure to follow the procedure mandated by Section 41 meant the employer could not prove a valid and fair reason, rendering the dismissal unfair on both substance and procedure.

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02

Whether the Claimant is entitled to the remedies sought

Holding

The Claimant was awarded six months' salary as compensation for the unfair dismissal and one month's salary in lieu of notice, but the claims for underpaid salaries, leave and leave travelling allowance, gratuity, terminal benefits and general damages failed for want of proof.

Reasoning

In exercising the statutory discretion on compensation, the Court took into account the Claimant's length of service and the Respondent's conduct in the disciplinary process. The Court adopted the pleaded figure of Kshs. 40,000 as the monthly salary for tabulation. The other heads of claim were not proved and were dismissed.

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Legal principles established

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  • Section 43 of the Employment Act, 2007 places the burden on the employer to prove a valid reason for termination, and gross misconduct alleged must be proved.
  • An employer who does not allow the disciplinary process to run full circle as contemplated under Section 41 of the Employment Act cannot be said to have proved a valid reason for dismissal, and dismissal will be both substantively and procedurally unfair.

Court orders

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  1. 1.Award of 6 months' salary in compensation (Kshs. 240,000) for unfair dismissal
  2. 2.Award of 1 month's salary in lieu of notice (Kshs. 40,000)
  3. 3.Total award of Kshs. 280,000 in favour of the Claimant
  4. 4.Claimant to have costs of the case
  5. 5.Award to attract interest at court rates from the date of the award until payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 41
Jurisdiction invoked
Article 162(2) of the Constitution / Employment and Labour Relations Court Act (Employment and Labour Relations Court at Nairobi, Cause No 483 of 2015)

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, "Moses Wanjima Mwangi v Vert Limited [2016] KEELRC 1143 (KLR)", Case Analysis (2016). Cause No 483 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1143/eng@2016-05-31

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