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 854 of 2013· [2018] KEELRC 229 (KLR)

Nicholas Mutua Muli v Hoggers Limited [2018] KEELRC 229 (KLR)

Employment and Labour Relations Court
20 December 2018
HWHellen Wasilwa
911 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

#

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent as a Rider from 1 August 2004 on a monthly salary of Kshs.13,000/=, was suspended on 15 March 2012 over allegations that he had fought with a colleague while on duty, and was summarily dismissed by letter dated 28 March 2012 which he alleged was backdated to 19 March 2012. He claimed unfair and unlawful termination, seeking one month's salary in lieu of notice, unpaid leave and compensation totaling Kshs.195,000/=. The Respondent admitted the employment relationship and maintained that the dismissal was fair, based on a notice to show cause and the Claimant's alleged gross misconduct of fighting with a colleague. The court found, from two witness statements produced by the Respondent, that either a fight or an exchange of bitter words occurred, and that the Respondent may have had a good reason to dismiss the Claimant. However, the court held that Section 41 of the Employment Act imposes a mandatory duty on the employer to summon the employee to a disciplinary hearing whether or not the employee requests one, and that asking an employee whether they wish to be heard does not satisfy the section. The Respondent's failure to hold a disciplinary hearing breached Section 41, rendering the termination unfair under Section 45(2). The court awarded one month's salary in lieu of notice and six months' salary as compensation, totaling Kshs.104,600/=, with costs and interest from the date of judgment.

Key legal issues

#
01

Compliance with Section 41 of the Employment Act

Holding

The Respondent breached Section 41 by asking the Claimant to indicate whether he wanted an oral hearing instead of summoning him to one; the hearing requirement is mandatory

Reasoning

The court examined Section 41 of the Employment Act which requires an employer, before terminating on grounds of misconduct, to explain the reasons to the employee and to hear and consider any representations. The court held that the employer has the duty to summon the employee for a hearing whether the employee chooses to attend or not, and may terminate only if the employee fails to attend the summoned hearing. By merely inviting the Claimant to request a hearing, the Respondent breached the statute.

p. 2
02

Unfairness of termination under Section 45(2) of the Employment Act

Holding

Because the Claimant was not subjected to a disciplinary hearing, his termination was unfair and he was entitled to compensation

Reasoning

The court noted the Respondent may have had a valid reason to dismiss the Claimant for fighting or quarrelling with a colleague, based on conflicting statements produced by the Respondent. However, Section 45(2) requires the employer to prove both a valid and fair reason and a fair procedure. Since the fair-procedure requirement under Section 41 was breached, the termination was unfair, justifying notice pay and the maximum-adjacent award of six months' salary.

p. 2

Legal principles established

#
  • An employer's duty under Section 41 of the Employment Act to hold a disciplinary hearing is mandatory; the employer must summon the employee to a hearing whether or not the employee indicates they want one
  • Asking an employee whether they wish to be heard, instead of summoning them to a hearing, breaches Section 41 of the Employment Act

Court orders

#
  1. 1.1 month salary in lieu of notice of Kshs.13,000/=
  2. 2.6 months' salary as compensation for unfair termination of Kshs.78,600/= (13,000 x 6), total award Kshs.104,600/=
  3. 3.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

#

Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 41(2)
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)
  • Employment Act, 2007Section 45(2)(a), (b)(i), (b)(ii) and (c)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination claims (Employment Act, 2007)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nicholas Mutua Muli v Hoggers Limited [2018] KEELRC 229 (KLR)", Case Analysis (2018). Cause No 854 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/229/eng@2018-12-20

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