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Case Brief · caselaw.co.ke
ELRCDismissedCause No 2283 of 2014· [2018] KEELRC 623 (KLR)

Theuri Munyi v Gnld International (Pty) Limited & another [2018] KEELRC 623 (KLR)

Employment and Labour Relations Court
16 November 2018
3,040 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A senior executive's unfair dismissal claim failed because the Kenyan court found his disciplinary hearing and dismissal were fair under the Employment Act.

What this practically means

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Executive summary

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The claimant, formerly Vice President of Operations East Africa, sued his two joint employers (a South African company that issued his employment and promotion letters, and a Kenyan company that paid his salary and issued the termination letter) challenging the termination of his employment on 30.04.2012 following a disciplinary hearing. He sought a declaration of wrongful and unfair termination, reinstatement, 12 months' salary as damages, lost salaries and bonuses, severance pay, house allowance, interest, costs and a certificate of service; prayers for suspension salary, notice pay and leave days were dropped by consent. The respondents denied the claim and sought dismissal with costs. The Court framed four issues: authority of those conducting the disciplinary process; the effect of a pre-hearing meeting urging resignation; the fairness of the termination; and entitlement to remedies. It held that the disciplinary actors had due authority, that parties may lawfully negotiate a separation agreement alongside a disciplinary process, and that the termination was fair in both procedure and substance: the claimant received notice, replied, and was heard, and the grounds (breach of fiduciary duty over premature payment for the Uganda warehouse project and irreparable breakdown of trust with Ugandan distributors) were valid under sections 41, 43 and 45 of the Employment Act, 2007. All monetary remedies failed - the damages and reinstatement claims because no unfairness was established, lost earnings as unpleaded special damages, severance for want of redundancy, and house allowance both for want of contractual basis and as time-barred under section 90. The Court ordered delivery of a certificate of service by 01.12.2018 and that each party bear its own costs.

Key legal issues

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01

Authority of persons conducting the disciplinary hearing

Holding

All persons involved in the disciplinary process had authority to act; the claimant did not dispute their authority during the process and the respondents were his joint employers

Reasoning

The claimant admitted his salary was paid by the 2nd respondent while the 1st respondent issued his employment letter and promotions. The Court found the claimant knew the two companies were his joint employers and never challenged the authority of those handling his case during the hearing. Absent any contractual or statutory bar, the disciplinary process was undertaken with due authority.

p. 3
02

Effect of the pre-hearing meeting urging resignation

Holding

The meeting did not impair the disciplinary process; no rule bars negotiating a separation agreement alongside disciplinary proceedings

Reasoning

The claimant alleged the meeting showed a predetermined decision to dismiss him. The Court held there is no contractual or statutory prohibition on parties negotiating a termination or soft-landing arrangement in view of a looming or ongoing disciplinary process, so the meeting did not vitiate the subsequent hearing.

p. 3
03

Fairness of the termination

Holding

The termination was fair both in procedure and substance

Reasoning

The claimant received notice of the allegations, replied, and attended a disciplinary hearing as required by section 41 of the Employment Act, 2007. Charges 2a and 3b were admitted with mitigation, and the claimant's own testimony confirmed the breakdown of trust with Ugandan distributors and the premature payment to the contractor. The grounds were valid under sections 43 and 45.

p. 3
04

Entitlement to remedies

Holding

All monetary remedies refused; only a certificate of service awarded

Reasoning

Having found the termination fair, the declaratory relief, reinstatement, and 12 months' damages fell away. Lost salaries failed as unpleaded special damages, severance failed absent redundancy, and the house allowance claim lacked contractual basis and was time-barred under section 90. The claimant was entitled only to a certificate of service under section 51.

p. 4

Legal principles established

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  • Where the employer assigns persons to act in a disciplinary process and no contractual or statutory provision bars them, the employee cannot dispute their authority
  • Parties may negotiate a termination or separation agreement notwithstanding a looming or ongoing disciplinary process, absent a contractual or statutory bar

Court orders

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  1. 1.The respondent to deliver a certificate of service to the claimant by 01.12.2018
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 45
  • Employment Act, 2007section 43
  • Employment Act, 2007section 40
  • Employment Act, 2007section 51
  • Employment Act, 2007section 90
  • Companies Act, Cap 486 (Laws of Kenya)not specified
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 40, 41, 43, 45, 51, 90 referred to)

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, "Theuri Munyi v Gnld International (Pty) Limited & another [2018] KEELRC 623 (KLR)", Case Analysis (2018). Cause No 2283 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/623/eng@2018-11-16

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