Moffat Mwanzi v Mudher Engineering Works Limited [2018] KEELRC 566 (KLR)
The bottom line
#A Kenyan court awarded a welder over Kshs.516,000 after his employer fired him without notice, a hearing, or proof of a valid reason.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination
Termination without notice and hearing was procedurally unfair.
The claimant was arrested at the workplace on allegations of theft and asked to resign without payment of final dues. No notice or hearing was accorded him prior to termination, contrary to section 41 of the Employment Act, 2007. The termination was therefore unfair in procedure.
Validity of the alleged discharge statement
On a balance of probability the claimant never wrote or signed the alleged statement of 16.05.2011.
The claimant testified his highest education was class 2 and he could not write in any language. The respondent's witness confirmed he had never seen the claimant writing and did not know if he knew how to write. The court found on a balance of probability that the claimant did not author or sign the discharge statement.
Burden of proving reason for termination
The respondent failed to prove the reason for termination; the termination was substantively unfair.
Under sections 43 and 47(5) of the Employment Act, 2007 the employer bears the burden of proving the reason for termination. The respondent's witness did not know why the claimant was dismissed and confirmed his performance was not bad. The alleged theft and drunkenness were not proved, so the termination was unfair in substance as well.
Remedies for unfair termination
Claimant awarded notice pay, 12 months' compensation and service pay.
Notice pay of Kshs.20,947.00 was awarded under section 35; 12 months' compensation of Kshs.251,364.00 under section 49(1)(c), considering 17 years of service, the desire to remain in employment, non-contribution to the predicament, the employer's condonation of drunkenness, and the aggravating feigned redundancy and arrest. Service pay of Kshs.223,434.66 was awarded under section 35 as there was no evidence of alternative pension arrangements or NSSF membership.
Legal principles established
#- An employer must accord an employee notice and a hearing before termination as envisaged in section 41 of the Employment Act, 2007.
- The burden of proving the reason for termination rests on the employer under sections 43 and 47(5) of the Employment Act, 2007.
Court orders
#- 1.Payment of Kshs.516,692.66 by 31.12.2018 failing interest at Court rates from the date of judgment till full payment
- 2.The respondent to pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over claims under the Employment Act, 2007 (sections 35, 41, 43, 47(5), 49(1)(c))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moffat Mwanzi v Mudher Engineering Works Limited [2018] KEELRC 566 (KLR)", Case Analysis (2018). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/566/eng@2018-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.