William Mogeni Momanyi v Aga Khan University Hospital [2018] KEELRC 843 (KLR)
The bottom line
#A Kenyan court ruled an employer's dismissal of a kitchen attendant was unfair because no proper notice or hearing was given, awarding him over Kshs.156,000.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in summary dismissal
The dismissal was procedurally unfair because there was no termination notice and no disciplinary hearing as envisaged by section 41 of the Employment Act, including the absence of a trade union representative.
The court accepted that the claimant was given a chance to explain himself, but the process lacked a trade union representative as envisaged under section 41. The court found no termination notice and no disciplinary hearing. Thus, despite the gravity of the allegations amounting to gross misconduct, the respondent failed to accord the claimant due process, rendering the dismissal procedurally unfair.
Valid reason for termination
The respondent had not established a valid reason for the dismissal at the time of termination; the allegations of theft remained unsubstantiated.
The claimant was accused of giving 2 kg of rice to a colleague, but the colleague's statement did not mention receiving the rice from the claimant, and other statements suggested the claimant was pleading for his colleague's forgiveness rather than being the culprit. The conflicting statements were untested because no proper hearing occurred. Acting on one statement while disregarding others without a hearing meant no valid reason existed under sections 43 and 45.
Compensation under section 49 of the Employment Act
The claimant was awarded 6 months' salary as compensation (Kshs.112,440.00), reduced from the maximum 12 months because of his 50% contribution to the dismissal.
The court found the termination unfair in substance and procedure and exercised its discretion under section 49 to award 6 months' compensation. The reduction reflected the claimant's conduct - going on his knees to plead for his colleague - which led the respondent to believe he was culpable. His contribution was assessed at 50% of the responsibility for the dismissal.
Notice pay under the CBA
Clause 9 of the CBA providing for termination with 3 months' notice or pay in lieu applied, and the claimant was awarded Kshs.37,480.00 as prayed.
The claimant had argued that the 2 months' notice prescribed in the collective bargaining agreement was not served. The court applied clause 9 of the CBA, which provided for termination with 3 months' notice or pay in lieu, and awarded the claimed amount of Kshs.37,480.00 as notice pay.
Salary for days worked in May 2010
By consent, the claimant was awarded Kshs.6,871.30 for 11 days worked in May 2010.
The parties consented that the claimant be paid for the 11 days worked in May 2010, and the court awarded Kshs.6,871.30 in that regard. This was not contested and reflects the agreed quantum between the parties.
Legal principles established
#- Even where allegations amount to gross misconduct justifying summary dismissal, the employer must still accord the employee due process under section 41 of the Employment Act, including notice and a hearing with a trade union representative where applicable
- The employer bears the burden of establishing a valid reason for termination at the time of termination under sections 43 and 45 of the Employment Act, and unsubstantiated allegations do not satisfy that burden
- An employee's conduct contributing to the dismissal justifies reducing the compensation award under section 49 of the Employment Act
Court orders
#- 1.Payment of Kshs.156,791.30 by 01.12.2018, 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 under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Mogeni Momanyi v Aga Khan University Hospital [2018] KEELRC 843 (KLR)", Case Analysis (2018). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/843/eng@2018-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.