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ELRCPartially AllowedELRC Cause (number not stated in judgment excerpt)· [2018] KEELRC 479 (KLR)

Peter Ngari Kariuki v Rift Valley Railways (K) Ltd [2018] KEELRC 479 (KLR)

Employment and Labour Relations Court
7 December 2018
906 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled an employer must actually prove its reasons for firing you in court, or the dismissal becomes unfair and compensable.

What this practically means

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Executive summary

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This Employment and Labour Relations Court Cause at Nairobi, decided by Radido Stephen, Judge, on 7 December 2018, concerned a Claimant dismissed for negligence arising from a shunting accident involving locomotives, his service of about 9 years having ended with a dismissal letter dated 21 October 2014. The Court framed three issues: whether the dismissal was unfair, whether the Claimant was owed wages for November 2014, and appropriate remedies. On procedure, the Court found the statutory test under sections 35 and 41 of the Employment Act, 2007 satisfied: a show cause notice was issued on 23 September 2014, answered the same day, and the Claimant appeared before a Disciplinary Committee whose minutes were on file. On substance, the Respondent closed its case without calling witnesses or leading evidence, relying only on cross-examination. Sections 43 and 45 required it to prove valid and fair reasons. The minutes showed the driver of loco 9311, Francis Oduor, moved at high speed and admitted in his own disciplinary process that he moved before being signalled. The Court held the dismissal unfair because the driver was reckless, and noted that the Disciplinary Committee had recommended termination of service, a distinct penalty from dismissal, with no apparent authority for the conversion. Remedies: 9 months' gross wages as compensation (Kshs 982,350/-) and one month's pay in lieu of notice (Kshs 41,076/-). Claims for November 2014 wages, accrued leave and a certificate of service were refused. The Claimant was awarded costs. The judgment contains three minor internal discrepancies noted in the data quality flags.

Key legal issues

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01

Procedural fairness of the termination

Holding

Procedurally fair - the show cause notice, response and disciplinary hearing satisfied sections 35 and 41 of the Employment Act, 2007.

Reasoning

The Claimant was issued a show cause notice on 23 September 2014 and responded the same day. He then appeared before a Disciplinary Committee on 24 September 2014, and the minutes of that hearing were filed in Court. The Court found this process met the statutory requirements of written notice under section 35 and hearing under section 41 of the Employment Act, 2007.

p. 1
02

Substantive fairness of the dismissal

Holding

Substantively unfair - the Respondent failed to prove the charge of negligence; the evidence showed the driver of loco 9311 was reckless, and the disciplinary committee recommended termination of service, not dismissal.

Reasoning

Under sections 43 and 45 of the Employment Act, the employer had to prove valid and fair reasons for dismissal. The Respondent called no witnesses or evidence, relying only on cross-examination. The Claimant maintained the driver had an unobstructed view and could not have been prevented from causing the accident. Minutes showed the driver was moving at high speed and, in his own disciplinary process, admitted moving before being signalled. The Court found the driver reckless and the dismissal unfair. Further, the Disciplinary Committee recommended termination of service, not dismissal, and it was unclear on whose authority the penalty was converted.

p. 2
03

Remedies for unfair termination

Holding

Compensation of 9 months' gross wages (Kshs 982,350/-) given about 9 years of service, plus one month's pay in lieu of notice (Kshs 41,076/-), totalling Kshs 1,023,626/-.

Reasoning

Considering the length of the Claimant's service of about 9 years, the Court assessed compensation at 9 months' gross wages, using the September 2014 gross wage of Kshs 109,150/-. Having found the dismissal unfair, the Court also awarded the equivalent of one month's basic salary of Kshs 41,076/- in lieu of notice. Claims for November 2014 wages, accrued leave and a certificate of service were rejected.

p. 2

Legal principles established

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  • An employer bears the burden under sections 43 and 45 of the Employment Act to prove not only the reasons for dismissal but that they were valid and fair, and failure to lead evidence may defeat that burden.
  • Procedural fairness is met where a show cause notice is issued, the employee responds, and the employee appears before a disciplinary committee, satisfying sections 35 and 41 of the Employment Act.

Court orders

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  1. 1.Declaration that the dismissal of the Claimant was unfair
  2. 2.Award of compensation equivalent to 9 months gross wages of Kshs 982,350/-
  3. 3.Award of pay in lieu of notice of Kshs 41,076/-
  4. 4.Total award of Kshs 1,023,626/- to the Claimant
  5. 5.Claimant to have costs of the Cause

Authorities

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Legislation

  • Employment Act, 2007section 35
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (specific constitutional/statutory article not stated in the judgment)

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, "Peter Ngari Kariuki v Rift Valley Railways (K) Ltd [2018] KEELRC 479 (KLR)", Case Analysis (2018). ELRC Cause (number not stated in judgment excerpt). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/479/eng@2018-12-07

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