Robert Kimutai Rutto v Hotel Cathay Limited (Cause 269 of 2017) [2018] KEELRC 179 (KLR)
The bottom line
#Even when an employee commits gross misconduct, a Kenyan employer must still give a hearing before summary dismissal, or the dismissal is unfair.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of summary dismissal for absenteeism/desertion
Although the claimant committed gross misconduct by absence without leave, the summary dismissal without notice and hearing under section 41(2) rendered the termination unprocedural and unfair under section 45
Section 44 of the Employment Act permits summary dismissal of an employee absent without good cause, but the exercise of that right requires adherence to section 41(2): notice and a hearing before dismissal. The hearing requirement is mandatory. Where a hearing was impossible, the employer had to explain the circumstances. The respondent's evidence on the dates of absence was at variance (16 February 2016 in the defence versus February 2017 in testimony), with no warning, notice or disciplinary action corresponding to the alleged gross misconduct, and this disparity was unexplained. The termination was therefore devoid of due process and unfair, though no compensation was awarded given the misconduct and prior warnings.
Underpayment claim
Claim for underpayment dismissed; the claimant remained an IT Technician under written contractual terms with no evidence of promotion
The letter of appointment established the claimant as an IT Technician, and there was no letter promoting him to IT Manager or any other position. Employment being regulated by written terms, the claimant could not justify payment as a Cashier or Accountant. His last wage was Ksh.24,500, which had improved over time.
Leave pay
Claimant awarded unpaid leave for 3 years at Ksh.51,450
Annual leave is a right under section 28 of the Employment Act and every employer must facilitate taking of leave or compensate for untaken leave. The defence that the claimant took his 2014 leave was not challenged, but leave for 3 years remained due and unpaid, computed at Ksh.51,450 on his last wage of Ksh.24,500.
February 2017 salary
Awarded at Ksh.24,500 as employment subsisted until the letter and notice dated 28 February 2017
Since employment terminated by letter and notice dated 28 February 2017, the February 2017 wage remained due. The claimant was awarded Ksh.24,500, reflecting his last earned wage rather than the higher figure claimed.
Legal principles established
#- Even in summary dismissal for gross misconduct such as absence without leave, the employer must comply with the mandatory hearing requirements of section 41(2) of the Employment Act; failure renders the termination procedurally unfair under section 45
- Where an employer cannot give an employee a hearing, the circumstances preventing it must be demonstrated to the court
- Compensatory damages for unfair dismissal are not automatic and are assessed within the range of zero to twelve months depending on the severity of the violation of the employee's rights
- Annual leave is a statutory right under section 28 of the Employment Act; workplace policies negating it without the employee's consent are unlawful
Court orders
#- 1.Judgment entered for the claimant against the respondent for leave pay of Ksh.51,450.00
- 2.Award of wage for February 2017 of Ksh.24,500.00
- 3.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment and labour relations dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (5)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gichuki v Glaxosmithkline Pharmaceutical Kenya Limited (Employment and Labour Relations Cause E228 of 2021) [2025] KEELRC 691 (KLR)[2025] KEELRC 691 (KLR)6 Mar 2025
- G4S Kenya Limited v Arasa (Employment and Labour Relations Appeal E019 of 2022) [2024] KEELRC 2814 (KLR)[2024] KEELRC 2814 (KLR)14 Nov 2024
- Ogutu v G4s Security Services Kenya Limited (Cause 1895 of 2016) [2022] KEELRC 1468 (KLR)[2022] KEELRC 1468 (KLR)17 Jun 2022
- Mary Wacheke Thongoh-Muia v Central Bank of Kenya & Patrick Ngugi Njoroge [2019] KEELRC 167 (KLR)[2019] KEELRC 167 (KLR)29 Nov 2019
- James Ooko Seda v Adsite Limited [2019] KEELRC 471 (KLR)[2019] KEELRC 471 (KLR)23 Oct 2019
Cite this brief
#Cite this brief
Caselaw, "Robert Kimutai Rutto v Hotel Cathay Limited (Cause 269 of 2017) [2018] KEELRC 179 (KLR)", Case Analysis (2018). Cause No. 269 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/179/eng@2018-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.