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ELRCPartially AllowedCause No. 176 of 2015· [2016] KEELRC 1239 (KLR)

Peter Kamwi v Standard Group Limited [2016] KEELRC 1239 (KLR)

Employment and Labour Relations Court of Kenya
10 March 2016
MMM. Mbaru
5,377 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~22 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a Standard Group employee over Kshs. 3.5 million after finding his dismissal skipped basic fair-hearing steps and was driven by a supervisor's personal grudge.

What this practically means

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Executive summary

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The claimant, a presenter/anchor employed by the respondent in September 2010 and confirmed in February 2011, organised a Kigoma All Stars concert in Mombasa on 7 December 2013 to promote the respondent's brand. A dispute arose with his supervisor, Thomas Japanni, over the running of the event, after which the claimant was recalled from leave, taken through a disciplinary hearing on 11 December 2013, and summarily dismissed for allegedly overstepping his authority and causing confusion among staff. The court framed two issues: whether the termination was unfair, and what remedies were due. On procedure, the court found that no show cause letter to the claimant was produced in evidence, that he was denied the opportunity to respond to allegations or call his requested witness, and that section 41 of the Employment Act applies even to summary dismissal under section 44, rendering the process procedurally unfair. On substance, the court found the stated reason for termination unsupported by any evidence in the hearing record, and that the proceedings were a charade orchestrated by Japanni, whose threat to terminate the claimant in Mombasa came to pass; the dismissal was therefore actuated by malice, warranting exemplary damages. The court awarded maximum compensation of 12 months' gross pay (Kshs. 1,656,600), exemplary damages of Kshs. 1,500,000, notice pay of 3 months (Kshs. 414,150), and an unconditional certificate of service, with costs to the claimant. Claims for payment in respect of reasonable expectation of service and further exemplary damages for psychological harm were declined.

Key legal issues

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01

Procedural fairness in summary dismissal

Holding

The termination was procedurally unfair: no show cause letter was produced, the claimant was not given the opportunity to respond to it, and he was denied his requested witness.

Reasoning

Section 41 of the Employment Act obliges an employer to explain reasons and hear representations before termination, even for summary dismissal under section 44. The respondent produced no show cause letter issued to the claimant, so the allegations he was to answer at the 11 December 2013 hearing could not be ascertained. The claimant requested Mohamed Ali as a witness but was sent out of the meeting. No special circumstances prevented compliance with section 41, so the process was fundamentally flawed and procedurally unfair.

p. 6
02

Substantive fairness of the reason for termination

Holding

The stated reason (overstepping authority and causing confusion among staff) was not fair, valid or justified.

Reasoning

The letter of termination cited overstepping of authority and causing confusion, but the record of the disciplinary hearing contained nothing supporting that allegation; no evidence was led from the supervisor or affected staff. The hearing was presided over by the claimant's accuser and supervisor, Japanni, so the claimant could not get justice. The termination reason therefore lacked validity and was substantively unfair.

p. 7
03

Malice in the termination

Holding

The termination was orchestrated by Japanni out of personal pique and was a charade; the termination was actuated by malice, warranting exemplary damages.

Reasoning

Japanni failed to produce a programme showing the claimant had breached any protocol; nothing stopped the senior officer from taking charge of the event if dissatisfied. The threat made in Mombasa to terminate the claimant came to pass, and the process was a charade to sanction a pre-made decision. The disparity with Alex, who absconded duty but was merely suspended without pay, showed the sanction was harsh and malicious, justifying exemplary damages.

p. 7
04

Remedies under sections 49 and 51 of the Employment Act

Holding

Maximum 12 months' compensation was awarded based on gross pay of Kshs. 138,050; notice pay of 3 months; exemplary damages; and a certificate of service to issue unconditionally.

Reasoning

Given findings of both procedural and substantive unfairness, compensation under section 49 was due. The claimant had a clean disciplinary record and accolades, justifying the maximum 12 months. Notice pay at 3 months was unpaid. Exemplary damages followed the finding of malice. Under section 51 a certificate of service is due to every employee upon termination and was to be issued immediately.

p. 7

Legal principles established

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  • Dismissals under section 44 of the Employment Act (summary dismissal) remain subject to the procedural fairness requirements of section 41.
  • Both procedural and substantive fairness are required; the employer bears the burden of proving the validity and fairness of the reasons for termination.
  • A show cause letter follows an investigation of allegations, and the employee must be allowed to respond before being called to a disciplinary hearing.
  • Fair procedure is mandatory at every level of termination, including summary dismissal, unless a hearing is practically impossible for reasons the employer must explain.

Court orders

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  1. 1.Declaration that the termination of the claimant was procedurally and substantively unfair
  2. 2.Compensation awarded at Kshs. 1,656,600.00 (12 months' gross pay)
  3. 3.Exemplary damages awarded at Kshs. 1,500,000.00
  4. 4.Notice pay at 3 months' gross pay, being Kshs. 414,150.00
  5. 5.Certificate of service to issue immediately and unconditionally
  6. 6.Awards subject to the provisions of section 49(2) of the Employment Act
  7. 7.Costs of the suit awarded to the claimant

Authorities

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Legislation

  • Employment Actsection 41(1)
  • Employment Actsection 41(2)
  • Employment Actsection 42(1)
  • Employment Actsection 44
  • Employment Actsection 44(3) and (4)
  • Employment Actsection 45
  • Employment Actsection 46
  • Employment Actsection 49
  • Employment Actsection 49(2)
  • Employment Actsection 51
  • Employment Actsection 35
  • Employment Act, 2007generally

Cases cited (4)

  • Abraham Gumba versus Medical Supplies Authority
    Cause No. 1073 of 2012
  • Fred Odhiambo versus AG & Postal Corporation of Kenya
    Cause No. 312 of 2010
  • David Otunga Kenani versus Office of the Controller and Auditor General
    Cause No. 933 of 2013
  • Amrick Consales versus Mara Ison Technologies Kenya Limited
    Cause No. 2538 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Peter Kamwi v Standard Group Limited [2016] KEELRC 1239 (KLR)", Case Analysis (2016). Cause No. 176 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1239/eng@2016-03-10

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