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ELRCPartially AllowedMemorandum of Claim dated 22nd July, 2015 (Industrial Cause)· [2016] KEELRC 1162 (KLR)

Daniel Kiplagat Kipkeibut v Smep Deposit Taking Micro Finance Limited [2016] KEELRC 1162 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
17 May 2016
DMD.K. Njagi Marete
2,513 words in judgment
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The bottom line

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A Kenyan court ruled that firing an employee for desertion without giving them a hearing was unfair, awarding compensation even though far less than claimed.

What this practically means

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Executive summary

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The claimant, employed on contractual terms as an ICT assistant from 1st January 2008 with successive renewals, the last expiring on 22nd March 2015, was summarily dismissed on 23rd June 2014 on allegations of desertion of duty. He claimed he had fallen ill and orally sought permission to seek medical attention at Eldoret, and was dismissed without being heard. He alleged contravention of sections 41, 44 and 45 of the Employment Act and sought a declaration of unfair termination, Kshs. 1,955,880/-, a certificate of service, costs and interest. The respondent denied the claim in a defence the court described as escapist and a mere denial. The parties agreed on disposal by written submissions. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. Relying on the statutory fairness requirements and authorities including Walter Ogal Anuro and Nicholus Muasya Kyula, the court found the respondent had failed to comply with the requirements of a lawful termination, since the claimant was not heard or given a chance to dispute the allegations, and there was no valid and fair reason established. The claim was allowed: a declaration of unlawful, unprocedural and unfair dismissal; one month's salary in lieu of notice (Kshs. 48,000); six months' compensation (Kshs. 288,000); 20 days' pending wages (Kshs. 32,000), totalling Kshs. 368,000; issuance of a certificate of service within fourteen days; and costs to the respondent. Judgment delivered on 17th May 2016 by D.K. Njagi Marete, J.

Key legal issues

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01

Whether the summary dismissal for alleged desertion of duty was wrongful, unfair and unlawful

Holding

The termination was wrongful, unfair and unlawful because the respondent failed to comply with the requirements of sections 41, 44 and 45 of the Employment Act — the claimant was not heard or given an opportunity to dispute the allegations

Reasoning

The claimant was dismissed on allegations of desertion without being accorded a hearing. The respondent's defence was a mere denial and its submissions did not assist. The court found the claimant's case demonstrated non-compliance with the legal requirements for lawful termination, including explanation of reasons, opportunity to be accompanied and heard, and proof of a valid and fair reason.

p. 6
02

Whether the claimant was entitled to the relief sought

Holding

Yes; upon a finding of unlawful termination the claimant was granted a declaration, notice pay, six months' compensation, pending wages and a certificate of service

Reasoning

Having found the dismissal unlawful, unprocedural and unfair, the court held the claimant entitled to relief and awarded one month's salary in lieu of notice, six months' salary as compensation under the Employment Act, 20 days' pending wages for June, and directed issuance of a certificate of service under section 51, with costs to the respondent.

p. 6

Legal principles established

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  • For a termination to be fair there must be both substantive justification and procedural fairness
  • An employer must not merely allege misconduct but must verify it through internal administrative investigation before terminating
  • Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment falls on the employer

Court orders

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  1. 1.Declaration that the dismissal of the claimant by the respondent was unlawful, unprocedural and unfair
  2. 2.One month's salary in lieu of notice of Kshs. 48,000.00
  3. 3.Six (6) months' compensation for unlawful termination of employment, Kshs. 288,000.00
  4. 4.Pending wages for 20 days in June of Kshs. 32,000.00 (total award Kshs. 368,000.00)
  5. 5.Respondent to issue a certificate of service to the claimant within fourteen days of the orders
  6. 6.Costs of the claim to be borne by the respondent

Authorities

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Legislation

  • Employment Act, 2007Section 41(1)
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 45(1) and (2)
  • Employment Act, 2007Section 45(4)(b)
  • Employment Act, 2007Section 47(3)
  • Employment Act, 2007Section 49(c)
  • Employment Act, 2007Section 51
  • Employment Act, 2007Section 9(2)
  • Employment Act, 2007Section 10(7)
  • Employment Act, 2007Section 27(1)
  • Employment Act, 2007Section 28(1)
  • Employment Act, 2007Section 35(5)
  • Labour Institution ActSection 15(c)
  • Criminal Procedure Code (Cap 75)Section 44(3); Section 219
  • Industrial Court (Procedure) Rules, 2010Paragraph 14
  • Civil Procedure RulesOrder 2 Rule 15

Cases cited (4)

  • Edward Isedia Mukasia Vs. Eldo Supermarket Limited
    eKLR (2015)
  • Walter Ogal Anuro Vs Teachers Service Commission
    (2013) eKLR
  • Alphonce Machanga Mwachanya Vs Operation 680 Limited
    (2013) eKLR
  • Nicholus Muasya Kyula V FarmChem Limited
    Industrial Cause Number 1992 of 2011; (2012) LLR 235 (ICK)
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act, 2007; disposed of by written submissions per Industrial Court (Procedure) Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Daniel Kiplagat Kipkeibut v Smep Deposit Taking Micro Finance Limited [2016] KEELRC 1162 (KLR)", Case Analysis (2016). Memorandum of Claim dated 22nd July, 2015 (Industrial Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1162/eng@2016-05-17

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