Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 442 of 2013· [2017] KEELRC 1894 (KLR)

Kaingu Deche Washe v Hotel Sapphire Ltd [2017] KEELRC 1894 (KLR)

Employment and Labour Relations Court
13 January 2017
OMO.N. MAKAU
1,040 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 hotel worker unfairly dismissed without an oral hearing won Kshs.174,252 because his employer couldn't prove he skipped work without permission.

What this practically means

#

Executive summary

#
The claimant sued for terminal dues and compensation for unfair termination of his employment on 23.6.2011, having worked for the respondent on consecutively renewed short-term contracts from 1.5.2004. The respondent justified a summary dismissal for absence from work without permission and contended a fair procedure was followed. The court found the respondent failed to prove the absence was without permission: the claimant testified he had verbal permission from his supervisor, Mr. Mbarua, to attend to a sick child, and that contention was never denied; the defence instead called an HR officer employed in 2014, after the dismissal. Under sections 43, 45(2) and 47(5) of the Employment Act the burden lay on the employer and was not discharged. The court further held that the section 41 procedure - explanation in a language the employee understands, in the presence of a fellow employee of choice, with an opportunity for an oral defence - is mandatory. The employer's issuance of a show cause letter and consideration only of a written defence before dismissal therefore rendered the termination substantively and procedurally unfair. Under section 49(1) and (4), the court awarded two months' salary in lieu of notice (Kshs.29,142) pursuant to Regulation 20(1)(b) of the Regulation of Wages (Hotel and Catering Trades) Order, plus ten months' compensation (Kshs.145,210), considering the seven-year service and continued unemployment. Claims for accumulated leave, public holidays worked, June 2011 salary and service pay were declined for want of particulars, evidence and legal basis; the net pay of Kshs.32,791.70 (stated as Kshs.32,691.70 in the disposition) deposited with the labour office was adopted as accrued benefits. Judgment was entered for the claimant for Kshs.174,252 plus costs and interest.

Key legal issues

#
01

Whether the respondent proved a valid and fair reason for the summary dismissal

Holding

Respondent failed to prove the claimant absented himself without permission; the supervisor never denied granting verbal permission

Reasoning

The claimant testified he had a sick child and had verbal permission from supervisor Mr. Mbarua to be absent on 18.6.2011. That contention was not denied by Mr. Mbarua, and the defence instead called an HR officer employed in 2014, long after the dismissal. Under sections 43, 45(2) and 47(5) of the Employment Act the employer bears the burden, which was not discharged on a balance of probability.

p. 2
02

Whether a fair procedure was followed before dismissal

Holding

Procedure under section 41 was not followed; serving a show cause letter and considering a written defence does not satisfy the mandatory oral hearing requirement

Reasoning

Section 41 of the Employment Act requires the employer to explain the reason to the employee in a language he understands, in the presence of a fellow employee of his choice, and to invite the employee and companion to air their defence before termination. The employer only issued a show cause letter, deemed the written response unsatisfactory and dismissed the claimant without an oral hearing, rendering the termination procedurally unfair.

p. 2
03

What reliefs flow from the unfair termination

Holding

Two months' salary in lieu of notice plus 10 months' compensation awarded under section 49(1) and (4); other heads declined

Reasoning

Regulation 20(1)(b) of the Regulation of Wages (Hotel and Catering Trades) Order entitled the claimant, having served over 5 years continuously, to two months' notice or salary in lieu, computed at Kshs.29,142 based on his May 2011 gross salary of Kshs.14,521. Compensation of 10 months (Kshs.145,210) reflected the 7-year service and the claimant's failure to secure alternative employment. Claims for leave, public holidays, June salary and service pay were declined for want of particulars, evidence and legal basis.

p. 2

Legal principles established

#
  • The burden of proving and justifying the reason for termination lies on the employer
  • The section 41 procedure of oral hearing in the presence of a fellow employee of choice is mandatory and admits no discretion

Court orders

#
  1. 1.Judgment entered for the claimant in the sum of Kshs.174,252 plus costs and interest
  2. 2.Claimant to collect the Kshs.32,691.70 deposited in the labour office by the respondent

Authorities

#

Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 43
  • Employment Actsection 47(5)
  • Employment Actsection 41
  • Employment Actsection 49(1) and (4)
  • Regulation of Wages (Hotel and Catering Trades) Orderregulation 20(1)(b)
Jurisdiction invoked
Employment Act (employment and labour relations dispute heard in the first instance)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kaingu Deche Washe v Hotel Sapphire Ltd [2017] KEELRC 1894 (KLR)", Case Analysis (2017). Cause No 442 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1894/eng@2017-01-13

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