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ELRCPartially AllowedNot stated in the judgment (Memorandum of Claim filed 4/5/2012)· [2018] KEELRC 221 (KLR)

James Mokua Onchwati v Rift Valley Railways (Kenya) Limited [2018] KEELRC 221 (KLR)

Employment and Labour Relations Court
20 December 2018
HWHellen Wasilwa
755 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employer lost an unfair dismissal case because it never gave the employee an oral hearing before firing him.

What this practically means

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Executive summary

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The Claimant, James Mokua Onchwati, sued his employer alleging unfair summary dismissal on 8/2/2012 after he allegedly mismanaged Locomotive No. C3A LOCO 9314 on 24.5.2011 by stopping at an unauthorised spot while transiting from Nairobi to Eldoret. He held the position of Locomotive Driver Grade 8, confirmed by an appointment letter dated 27th April 2011, on a three-year contract expiring on 6.7.2013. He sought a declaration that his dismissal was unfair, one month's salary in lieu of notice, and compensation of twelve months' salary. He testified that he was suspended for unauthorised handling of the train and excess fuel consumption, explained that there was a wheel slip, and that he stopped at Rongai Station in Nakuru, but was not given an opportunity to be heard. The Respondent filed a defence but did not prosecute its case; the court closed the Respondent's case and directed parties to file submissions, which only the Claimant did. Applying Sections 41 and 45(2) of the Employment Act 2007, the court held that although the Claimant responded in writing to the accusations, he was dismissed without any disciplinary hearing, denying him the oral hearing the statute mandates. It found the dismissal unfair and unjustified and awarded one month's salary in lieu of notice (Kshs. 45,000) and six months' salary as compensation (Kshs. 270,000), totalling Kshs. 315,000, plus costs and interest at court rate from the date of judgment. The twelve months' compensation sought was not granted in full.

Key legal issues

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01

Procedural fairness in dismissal under Section 41 of the Employment Act

Holding

The dismissal was unfair because the Claimant was dismissed without a disciplinary hearing despite having responded in writing to the accusations

Reasoning

The Claimant was suspended and asked to explain the accusations, and he responded in writing, but he was thereafter dismissed without being taken through any disciplinary hearing. Section 41 requires an oral hearing before termination on grounds of misconduct. The Respondent failed to accord this opportunity and therefore dismissed him unfairly. The Respondent did not prosecute its defence, having filed a defence but not appeared at the hearing.

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02

Burden of proving validity of reason and fair procedure under Section 45(2)

Holding

The employer failed to prove a valid and fair reason and fair procedure, so the termination was unfair

Reasoning

Section 45(2) places the burden on the employer to prove that the reason for termination is valid, is a fair reason related to conduct, capacity or compatibility or operational requirements, and that the termination followed fair procedure. The Respondent, having closed its case without prosecution and filed no submissions, adduced nothing to discharge this burden.

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Legal principles established

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  • Section 41 of the Employment Act requires an employer to accord an employee an oral hearing before dismissal, and failure to do so renders the dismissal unfair

Court orders

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  1. 1.1 month salary in lieu of notice of Kshs. 45,000
  2. 2.6 months' salary as compensation for unfair dismissal, Kshs. 270,000 (total award Kshs. 315,000)
  3. 3.Respondent to pay costs of the suit plus interest at court rate from the date of judgment

Authorities

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Legislation

  • Employment Act 2007Section 41(1) and (2)
  • Employment Act 2007Section 45(2)
  • Employment Act 2007Section 44(3) and (4)
  • Employment Act 2007Section 42(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007 invoked); no specific constitutional/statutory jurisdictional provision stated

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, "James Mokua Onchwati v Rift Valley Railways (Kenya) Limited [2018] KEELRC 221 (KLR)", Case Analysis (2018). Not stated in the judgment (Memorandum of Claim filed 4/5/2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/221/eng@2018-12-20

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