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ELRCPartially AllowedCause No. 684 of 2013· [2018] KEELRC 214 (KLR)

John Mutuku Mutua v Bush Rover Limited [2018] KEELRC 214 (KLR)

Employment and Labour Relations Court
10 December 2018
HWHellen S. Wasilwa
1,366 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a workshop manager's dismissal unfair because the employer gave no hearing or written reason, awarding him over Kshs. 570,000.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as Workshop Manager from January 2000 on a permanent and pensionable basis, sued for wrongful and unfair dismissal following termination of his services on 18th September 2012. He alleged that after a vehicle could not be serviced on 15th September 2012, he was on resuming work accused of being responsible for the disappearance of an oil filter, air filter and 8 litres of engine oil and was terminated verbally without notice or investigations. He had been prosecuted in Criminal Case Number 6336 of 2012 at Kibera Law Courts but was acquitted under Section 215 of the Criminal Procedure Code. The Respondent admitted the employment relationship but contended the Claimant neglected his duties, occasioning financial loss of Kshs. 87,000, and was summarily dismissed for gross misconduct, and it filed a counterclaim for that sum. The Respondent, though present at the call over, did not participate in the hearing and filed no submissions, leaving the Claimant's evidence uncontroverted. The court found no Notice to Show Cause, no invitation to a disciplinary hearing and no termination letter, holding that the Claimant was denied the hearing contemplated by Section 41 of the Employment Act and that the reasons for dismissal were unproved under Section 45. The dismissal was declared unfair and unjustified. The court awarded salary for September 2012, one month's notice pay, eight months' compensation, three years' house allowance, one year's leave pay, a certificate of service, plus costs and interest.

Key legal issues

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01

Fair hearing before dismissal

Holding

The Claimant was denied a hearing before dismissal contrary to Section 41 of the Employment Act

Reasoning

The Claimant's evidence was uncontroverted as the Respondent failed to participate in the hearing. There was no evidence of a Notice to Show Cause, no letter inviting the Claimant to a disciplinary hearing and no termination letter. Despite pleading that the Claimant was given an opportunity to defend himself but absconded, the Respondent produced no letter inviting him to any disciplinary hearing.

p. 2
02

Validity of reason for termination

Holding

The reasons for dismissal were not proved by the Respondent

Reasoning

The Respondent alleged loss of items valued at Kshs. 87,000 during the Claimant's watch and gross misconduct, but did not participate in the hearing to prove these allegations. The Claimant was also acquitted in Criminal Case Number 6336 of 2012. With reasons unproved and no due process followed, the dismissal was unfair and unjustified.

p. 3

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 before summary dismissal
  • A termination of employment is unfair where the employer fails to prove a valid and fair reason and a fair procedure

Court orders

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  1. 1.Salary for September 2012 of Kshs. 35,000
  2. 2.One month salary in lieu of notice of Kshs. 35,000
  3. 3.Eight months' salary as compensation for unlawful termination of Kshs. 280,000
  4. 4.House allowance for 3 years not affected by limitation period of Kshs. 189,000
  5. 5.One year leave of Kshs. 35,000
  6. 6.Issuance of a Certificate of Service
  7. 7.Respondent to pay costs of the suit plus interest at Court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 45(2)
  • Employment ActSections 42(1), 44(3) and (4) as referenced in Section 41
  • Criminal Procedure CodeSection 215
  • International Labour Organisation ConventionsNo. 158

Cases cited (2)

  • Anthony Mkala Chitavi v Malindi Water and Sewerage Company Limited
    (2013) eKLR
  • David Wanjau Muhoro v Ol Pejeta Ranching Limited
    (2014) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Mutuku Mutua v Bush Rover Limited [2018] KEELRC 214 (KLR)", Case Analysis (2018). Cause No. 684 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/214/eng@2018-12-10

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