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ELRCPartially AllowedNot stated in the judgment extract· [2018] KEELRC 843 (KLR)

William Mogeni Momanyi v Aga Khan University Hospital [2018] KEELRC 843 (KLR)

Employment and Labour Relations Court
26 October 2018
1,080 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant, employed by the respondent as a Kitchen Attendant from December 2005, was summarily dismissed on 11 May 2010 following an incident in which a workmate, Stephen Kilonzo, was found carrying 2 kg of rice, with the supervisor alleging that the claimant had given it to him. The claimant sued for salary for May 2010, three months' notice pay, severance pay, damages for wrongful and unfair termination under sections 49 and 50 of the Employment Act, a declaration that the termination was null and void, a certificate of service, and costs. The respondent denied unfair termination, contending the criminal case was distinct from the dismissal process and that the dismissal was fair and lawful. The court found that although the claimant was given a chance to explain himself, there was no termination notice and no disciplinary hearing as required by section 41 of the Employment Act, and no trade union representative was present. The court further held that the respondent had not established a valid reason for the dismissal at the time of termination, as the allegations remained unsubstantiated and the conflicting statements were untested. The termination was unfair in substance and procedure. The claimant was awarded 6 months' compensation (Kshs.112,440.00) under section 49, reduced from the maximum 12 months because the court found he contributed 50% to his dismissal by pleading for his colleague's forgiveness. Notice pay of Kshs.37,480.00 was awarded under clause 9 of the CBA, and Kshs.6,871.30 for 11 days worked in May 2010 by consent. Judgment was entered for the claimant in the total sum of Kshs.156,791.30, payable by 1 December 2018 failing interest at court rates, with costs to the claimant.

Key legal issues

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01

Procedural fairness in summary dismissal

Holding

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.

Reasoning

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.

p. 2
02

Valid reason for termination

Holding

The respondent had not established a valid reason for the dismissal at the time of termination; the allegations of theft remained unsubstantiated.

Reasoning

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.

p. 2
03

Compensation under section 49 of the Employment Act

Holding

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.

Reasoning

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.

p. 2
04

Notice pay under the CBA

Holding

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.

Reasoning

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.

p. 2
05

Salary for days worked in May 2010

Holding

By consent, the claimant was awarded Kshs.6,871.30 for 11 days worked in May 2010.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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

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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, "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.