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ELRCPartially AllowedCause No. 1211 of 2014 (Formerly HCCC No. 181 of 2001)· [2018] KEELRC 744 (KLR)

Apollo Okoth Mwanga v Kenya Institute of Educaiton [2018] KEELRC 744 (KLR)

Employment and Labour Relations Court of Kenya
29 October 2018
HWHellen S. Wasilwa
1,261 words in judgment
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The bottom line

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Kenya's Employment Court ruled an employee fired without being invited to his own disciplinary meeting was unfairly dismissed, even though he had skipped work repeatedly.

What this practically means

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Executive summary

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The Claimant, employed by the Kenya Institute of Education on 17 July 1990, claimed he was unfairly and summarily dismissed on 29 August 1995 on grounds of absenteeism. He asserted he had been sick, had been treated at Kenyatta National Hospital, and had produced a sick sheet known to his employer; he further alleged victimisation by a senior officer, Mr Mochoge, and that he was never taken through proper disciplinary procedures after suspension on 10 March 1995. The Respondent denied unlawful dismissal, asserting a history of disciplinary complaints including absenteeism, lateness, insubordination and fraudulent claims, and disputed the validity of the medical documentation relied upon, relying on a Kenyatta National Hospital report; it also contended it was not a body corporate capable of being sued. The court framed three issues: valid reasons for dismissal, fair disciplinary process, and entitlement to remedies. It found the Claimant was a chronic absentee who failed to notify his employer within 48 hours of sick off, but noted a critical inconsistency: the hospital letter discrediting his medical documents was dated 19 May 1995, after the disciplinary meeting of 4 April 1995. Crucially, the Claimant was never called to that meeting and thus had no opportunity to present his case. The dismissal was therefore held to be procedurally unfair. The court awarded the Claimant 12 months' salary (Kshs 129,600) as compensation for unfair termination and ordered the Respondent to pay costs of the suit. Judgment was delivered on 29 October 2018 by Hellen S. Wasilwa J.

Key legal issues

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01

Whether there were valid reasons to dismiss the Claimant

Holding

The Claimant was a chronic absentee and had been notified of the 48-hour notification requirement for sick off, but the Respondent's supporting documentation was inconsistent

Reasoning

The dismissal letter cited prolonged absenteeism of 78 days. Various letters showed repeated absenteeism. However, the Respondent relied on a letter from Kenyatta National Hospital dated 19.5.1995 discrediting the Claimant's medical documents, yet the disciplinary meeting that decided dismissal had been held earlier on 4/4/1995, casting doubt on the process.

p. 2
02

Whether the Claimant was accorded a fair disciplinary process

Holding

The Claimant was not accorded a fair disciplinary process because he was never called to the disciplinary meeting

Reasoning

The court found that the Claimant was not invited to the disciplinary meeting at which his dismissal was decided, denying him the opportunity to present his case. This failure of the audi alteram partem principle rendered the dismissal procedurally unfair and entitled him to compensation.

p. 2
03

Whether the Claimant is entitled to the remedies sought

Holding

The Claimant was awarded 12 months' salary as compensation for unfair termination

Reasoning

Having found the dismissal unfair due to the denial of a hearing, the court awarded the equivalent of 12 months' salary computed at Kshs 10,800 per month, totalling Kshs 129,600, together with costs of the suit. Other heads of relief sought in the plaint were not addressed in the final orders.

p. 2

Legal principles established

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  • An employee must be given an opportunity to present his case before dismissal; failure to afford a hearing renders the dismissal unfair.

Court orders

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  1. 1.Award of 12 months' salary for unfair termination: 12 x 10,800 = 129,600/-
  2. 2.Respondent to pay costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction following transfer of HCCC No. 181 of 2001 from the High Court to the ELRC on 14/7/2014

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, "Apollo Okoth Mwanga v Kenya Institute of Educaiton [2018] KEELRC 744 (KLR)", Case Analysis (2018). Cause No. 1211 of 2014 (Formerly HCCC No. 181 of 2001). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/744/eng@2018-10-29

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