Anthony Thuo Kanai v Cannon Assurance Limited [2018] KEELRC 831 (KLR)
The bottom line
#A Kenyan court ruled that even when an employee commits gross misconduct, dismissing them without a hearing still makes the dismissal unfair and costly.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons for summary dismissal
Yes - the Claimant proceeded on leave without approval (absenteeism) and failed to hand over as instructed (insubordination), both gross misconduct under Section 44(4) of the Employment Act
The Claimant admitted leave required supervisory approval. He left before approval and without handing over. He did not notify his supervisor of the sick-off until 4th December 2012, breaching the HR Handbook and his contract. Authorities cited confirm insubordination and unnotified absence are valid grounds for summary dismissal under Sections 43 and 44(4).
Whether due process was followed before dismissal
No - the Claimant was not accorded a hearing as required by Section 41(1) and (2) of the Employment Act, rendering the dismissal procedurally unfair
There was no indication of a hearing, no notification of charges, and no opportunity to be accompanied. The Respondent did not demonstrate efforts to trace the Claimant despite being in communication with him. The Respondent's own HR Manager admitted due process was not followed, and the Board Chairman's letter confirmed the Managing Director terminated the Claimant without following due process.
Whether the Claimant's constitutional rights were infringed
No - the failure to approve leave was a matter for mutual agreement under Section 28(5) of the Employment Act and did not amount to a constitutional infringement
The court held that although leave is an entitlement, the employer has a duty to agree with the employee on the timing of leave. Since the Claimant's leave application had not been approved and was still under consideration, no infringement of Article 41(2)(b) or of the Universal Declaration of Human Rights arose.
Whether the Claimant was dismissed by an authorised person
The judgment frames this as an issue but does not make an express finding; the evidence showed the Managing Director who dismissed the Claimant was himself dismissed for doing so unilaterally without following due process
The Respondent's Board Chairman's letter dated 20th August 2013 confirmed that the Managing Director unilaterally terminated the Claimant without following due process and without giving the Board reasons. The HR Manager stated the Managing Director had authority to sack the Claimant. The court made no explicit holding on this issue.
Remedies entitlement
The Claimant, having been unfairly dismissed procedurally, was awarded 8 months' salary compensation, 3 months' notice pay, 33 leave days' pay, pension dues, certificate of service and costs
Although valid reasons existed, the dismissal was procedurally unfair, entitling compensation under Section 49 of the Employment Act. Compensation was reduced to 8 months because of the Claimant's own contribution in proceeding on unapproved leave.
Legal principles established
#- An employer bears the burden of proving valid reasons for termination under Section 43 of the Employment Act
- Absence from work without notifying the employer of illness amounts to absconding duty justifying summary dismissal
- Even where an employee absconds, the employer must take steps to notify the employee of impending dismissal before summarily dismissing him
- Section 41 of the Employment Act imposes a mandatory pre-termination hearing; failure to comply renders the termination procedurally unfair
Court orders
#- 1.Compensation of 8 months' salary (8 x 382,207 = Kshs. 3,057,656) for unfair dismissal
- 2.Payment of 3 months' salary in lieu of notice (382,207 x 3 = Kshs. 1,146,621)
- 3.Payment for 33 leave days admitted by the Respondent (33/30 x 382,207 = Kshs. 420,427.7)
- 4.Payment of pension dues from the pension fund
- 5.Issuance of a certificate of service to the Claimant
- 6.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and the Employment Act, 2007 (not expressly stated in the extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Thuo Kanai v Cannon Assurance Limited [2018] KEELRC 831 (KLR)", Case Analysis (2018). Cause No. 38 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/831/eng@2018-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.