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ELRCPartially AllowedIndustrial Cause No. 243 of 2013· [2016] KEELRC 1836 (KLR)

Nemwel Oroba Gichana v Kenya Medical Research Institute [2016] KEELRC 1836 (KLR)

Industrial Court of Kenya
3 March 2016
MOMAUREEN ONYANGO
1,913 words in judgment
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The bottom line

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Kenya's Industrial Court ruled KEMRI unfairly terminated an employee without a hearing, awarding him 12 months' salary but rejecting claims for future earnings and reinstatement.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent (KEMRI/CDC) as a transport dispatcher from 2006, was suspended on 23rd June 2010 over allegations of conflict of interest and abuse of office, and his employment was terminated by letter dated 21st July 2010 without a hearing. He appealed and was later subjected to a disciplinary hearing on 2nd September 2010, after which a letter dated 29th September 2010 withdrew the original termination but simultaneously upheld the termination on the ground of non-declaration of conflict of interest. He sued for a declaration that the summary dismissal and withholding of terminal dues was unlawful, payment of Shs.5,920,000 for the unexpired term of an alleged 6-year contract, reinstatement and costs. The court framed two issues: whether the termination was unfair and whether he was entitled to the prayers. Applying Section 41 of the Employment Act, and noting both parties agreed no hearing preceded the termination, the court held both termination letters unfair. On remedies, the court found the renewed contract ran only for one year, refused payment of future salaries citing the principle that damages cannot rest on sanguine assessments of prospects and the duty to mitigate, and awarded maximum compensation of 12 months' gross salary, Shs.1,156,623. Reinstatement was declined for want of exceptional circumstances and the 3-year statutory limit. The suit was allowed in part, with costs to the Claimant.

Key legal issues

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01

Procedural fairness in termination of employment

Holding

Both the original termination and the subsequent letter upholding termination were unfair because the Claimant was not given a hearing before termination

Reasoning

Section 41 of the Employment Act requires an employer to explain reasons for contemplated termination and to hear and consider the employee's representations. Both parties agreed no hearing preceded the termination. The later disciplinary hearing could not cure the defect because the second letter upheld a termination that had already been withdrawn, on different grounds.

p. 3
02

Remedies for unfair termination - compensation, payment of future salaries and reinstatement

Holding

Maximum compensation of 12 months' salary awarded; future salaries and reinstatement refused

Reasoning

Under Section 49 of the Employment Act the court considers the length of service and other factors. Having served since 2006 with an undertaking to serve a further 6 years but only one year served, 12 months' salary was reasonable. Damages cannot be founded on sanguine assessments of prospects, and reinstatement requires exceptional circumstances and is time-capped at 3 years under the Industrial Court Act.

p. 4

Legal principles established

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  • An employer must, before terminating employment on grounds of misconduct, explain the reasons to the employee and hear and consider any representations made
  • Termination effected without a hearing is unlawful, and a subsequent letter upholding the termination of an already withdrawn termination is equally unfair
  • Future/unearned salaries beyond the contract term are not awardable; an employee must mitigate damages

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was unfair
  2. 2.Compensation of 12 months' gross salary, Shs.1,156,623, based on the last gross salary of Shs.96,385.25
  3. 3.Respondent to pay the Claimant's costs of the suit

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)
  • Employment ActSection 49 and Section 49(4)
  • Industrial Court Act(3-year cap on reinstatement orders)

Cases cited (3)

  • Menginya Salim Murgani v Kenya Revenue Authority
    High Court Civil Case No. 1139 of 2002
  • D. K. Njagi Marete v Teachers Service Commission
    [2013] eKLR
  • Maria Kagai Ligaga v Coca Cola East Africa Limited
    Cause No. 611(N) of 2009
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court (Employment Act, Section 41 and Section 49; Industrial Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Nemwel Oroba Gichana v Kenya Medical Research Institute [2016] KEELRC 1836 (KLR)", Case Analysis (2016). Industrial Cause No. 243 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1836/eng@2016-03-03

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