Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedCause No. 99 of 2015· [2016] KEELRC 1244 (KLR)

Stephen Mutunga Mbuvi v Hebatullah Brothers Limited [2016] KEELRC 1244 (KLR)

Employment and Labour Relations Court of Kenya
7 April 2016
982 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that firing a worker without a hearing is unfair, even for misconduct, and awarded him a year's salary.

What this practically means

#

Executive summary

#
The claimant, employed by the respondent in August 1992 as a welder and later promoted to mechanic, was summarily dismissed on 28 January 2014 at a gross salary of Kshs.13,258.00 after 22 years of service. On 23 January 2014 he was called to repair a respondent vehicle that had developed mechanical problems near Mlolongo; on the return journey the brakes failed, the vehicle rammed into a trailer and he suffered a concussion, being treated at Kenyatta National Hospital for a week. On reporting back to work he was issued with a letter of summary dismissal without notice or hearing. The memorandum of claim was filed on 29 January 2015; the respondent entered appearance but filed no defence, and despite service failed to attend the hearing on 7 March 2016, leaving the claim unopposed. The claimant testified and submitted that the dismissal violated sections 41 and 43 of the Employment Act, relying on case authority. The court found the dismissal was summary and in disregard of section 41, which requires an employer to give an employee a hearing before termination; even gross misconduct does not dispense with this mandatory procedural requirement. The violation of section 41(2) rendered the dismissal unlawful and an unfair practice under section 45. The court awarded compensation of 12 months' gross pay (Kshs.158,096.00) under section 49, one month's notice pay (Kshs.13,258.00) under section 35, an unconditional certificate of service under section 51 to be issued within 14 days, and costs of the suit. Judgment was delivered on 7 April 2016.

Key legal issues

#
01

Procedural fairness in summary dismissal

Holding

The claimant's summary dismissal without notice or hearing violated section 41(2) of the Employment Act and was unfair under section 45.

Reasoning

The court found that the claimant was summarily dismissed after leaving hospital following an accident involving a respondent vehicle while on a mechanical test. No defence was filed and the claim proceeded unopposed. The employer gave no notice and did not afford the claimant a hearing where he could state his defence. Such violation of the mandatory procedural requirements of section 41(2) rendered the summary dismissal unlawful and an unfair practice under section 45.

p. 2
02

Burden of proof on employer

Holding

Section 43 places the statutory burden on the employer to prove valid and fair reasons for termination, which the respondent failed to discharge.

Reasoning

Counsel for the claimant relied on section 43 of the Employment Act, which places the statutory burden of proof on the employer to demonstrate the reasons for termination. Such reasons must be valid and fair. In this case the claimant had an accident while undertaking his work and was summarily dismissed; the respondent filed no defence and led no evidence to demonstrate valid and fair reasons for the termination.

p. 1
03

Remedies for unfair dismissal

Holding

Compensation of 12 months' gross pay under section 49, one month's notice pay under section 35, and a certificate of service under section 51 were awarded.

Reasoning

Having found the summary dismissal unlawful, the court held compensation due under section 49 of the Employment Act. The claimant earned a gross salary of Kshs.13,258.00 and was awarded compensation at 12 months' gross pay. Notice pay was due in a case of unlawful dismissal under section 35, and a certificate of service was due under section 51, to issue immediately and unconditionally.

p. 2

Legal principles established

#
  • Before termination or dismissal an employer must give the employee a hearing, failing which the dismissal is procedurally unfair
  • Procedural fairness requirements under section 41 apply even in cases of gross misconduct justifying summary dismissal

Court orders

#
  1. 1.Declaration that the termination was unfair
  2. 2.Compensation awarded at Kshs.158,096.00
  3. 3.Notice pay of Kshs.13,258.00
  4. 4.Certificate of Service to be issued within 14 days
  5. 5.Costs of the suit awarded to the claimant

Authorities

#

Legislation

  • Employment Actsection 35
  • Employment Actsection 41
  • Employment Actsection 41(2)
  • Employment Actsection 43
  • Employment Actsection 45
  • Employment Actsection 49
  • Employment Actsection 51

Cases cited (3)

  • David Gichana Omuya versus Mombasa Millers Ltd
    [2004] eKLR
  • Kenya Union of Commercial Food and Allied Workers versus Meru North Farmers Sacco Limited
    [2014] eklr
  • Mary Mwangi versus Sofia Mangina t/a Athens Leather Products
    Cause No.1254 of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a claim of unlawful and unfair dismissal (Employment Act, sections 35, 41, 43, 45, 49, 51)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Stephen Mutunga Mbuvi v Hebatullah Brothers Limited [2016] KEELRC 1244 (KLR)", Case Analysis (2016). Cause No. 99 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1244/eng@2016-04-07

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