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ELRCPartially AllowedCause No 337 of 2013· [2018] KEELRC 459 (KLR)

John Munyao Musiku v Athi River Mining Limited [2018] KEELRC 459 (KLR)

Employment and Labour Relations Court
30 November 2018
MOMAUREEN ONYANGO
1,725 words in judgment
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The bottom line

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A Kenyan court ruled an employee's firing unfair because the employer never gave him a hearing, ordering payment of nearly Kshs. 100,000 plus costs.

What this practically means

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Executive summary

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The claimant, Jonah Munyao Musiku, sued his former employer alleging unfair and unlawful termination contrary to section 45 of the Employment Act, wrongful summary dismissal and failure to pay terminal dues, severance pay, accrued benefits and salary arrears. He was employed as a security officer on 23rd December 2010 and worked 11 months until 7th November 2011, when he was accused of stealing cement, arrested, and charged in Machakos CMCC No. 1726 of 2011. That case was dismissed on 10th February 2012, and when he reported back to duty he was told his services were no longer needed; he claimed he was never given a show cause letter or a hearing. The respondent, which did not call any witness, contended the dismissal was for gross negligence and loss of confidence and that terminal dues had been settled. The court framed three issues: validity of the termination procedurally and substantively; entitlement to reliefs; and costs. Finding no show cause letter, no proof of a disciplinary hearing, minutes or invitation, and no internal investigation despite the criminal case, the court held the termination unfair both procedurally and substantively, applying the principle that fairness requires both substantive justification and procedural fairness. On reliefs, the court dismissed the service pay claim (less than one year of service) and the unproved rest days claim, but awarded salary arrears of Kshs.12,738.50, one month's notice pay of Kshs.18,400, leave pay of Kshs.13,623 and three months' compensation of Kshs.55,200, totalling Kshs.99,961.50 with interest at court rates from the date of judgment, plus costs to the claimant.

Key legal issues

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01

Whether termination was procedurally fair under section 41 of the Employment Act

Holding

Termination was procedurally unfair - no show cause letter, no proof of a disciplinary hearing, invitation letter or minutes

Reasoning

The court found no show cause letter was issued. The respondent alleged a disciplinary hearing was held but the claimant did not attend, yet produced no witness, minutes or invitation letter to prove this. The court held the employer should have conducted its own investigation notwithstanding the criminal case against the claimant.

p. 3
02

Whether termination was substantively justified under sections 43 and 45

Holding

Termination was substantively unfair; the criminal case against the claimant was dismissed and the respondent proved no valid reason

Reasoning

The respondent relied on gross negligence/loss of confidence following alleged theft of cement, but the criminal case founded on the same allegations was dismissed. No investigation or hearing established culpability, so no valid and fair reason for termination was proved.

p. 3
03

Entitlement to reliefs and terminal dues

Holding

Claimant awarded salary arrears, notice pay, leave pay and three months' compensation; service pay and rest days claims dismissed

Reasoning

The court awarded salary up to termination date, one month's notice pay, leave pay for 19.25 days, and three months' salary as compensation taking into account the claimant's 11 months of service and the punishment of criminal proceedings. Service pay failed for want of a full year and rest days for want of evidence.

p. 3

Legal principles established

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  • For a termination to be fair there must be both substantive justification and procedural fairness
  • An employer must investigate and verify alleged misconduct internally before terminating an employee
  • Pending criminal proceedings do not excuse an employer from conducting its own disciplinary process

Court orders

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  1. 1.Judgment entered for the claimant against the respondent in the total sum of Kshs.99,961.50/=
  2. 2.Award of salary up to date of termination of Kshs.12,738.50
  3. 3.Award of one month's salary in lieu of notice of Kshs.18,400
  4. 4.Award of pay in lieu of 19.25 days leave of Kshs.13,623
  5. 5.Award of three months' salary as compensation of Kshs.55,200
  6. 6.The decretal sum to attract interest at court rates from date of judgment
  7. 7.The respondent to pay claimant's costs of the suit

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Actsection 18
  • Employment Act, 2007sections 35, 41, 41(2), 43, 44, 44(4)(c), 44(4)(g), 45(2), 47

Cases cited (6)

  • FRANCIS MBUGUA BORO –VS- SMARTCHIP DYNAMICS LTD
    (2017) eKLR
  • DAVID NJOROGE MUIRU -VS- ELSA LIMITED
    (2014) eKLR
  • Agnes Kavata Mbiti v Housing Finance Company Limited
    [2017] eKLR
  • MIRIAM SIWA -V- POSTBANK LIMITED
    [2014] eKLR
  • Walter Ogal Anuro –v- Teachers Service Commission
    (2013) eKLR
  • Nicholus Muasya Kyula V Farmchem Limited
    Industrial Cause Number 1992 of 2011; (2012) LLR 235 (ICK)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination complaint under sections 41, 43, 44 and 45)

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 Munyao Musiku v Athi River Mining Limited [2018] KEELRC 459 (KLR)", Case Analysis (2018). Cause No 337 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/459/eng@2018-11-30

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