James Muthoka Mwaniki v Kenya Builders & Concrete Company Limited [2018] KEELRC 979 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was dismissed
Expulsion from the premises by the Respondent's security amounted to an oral dismissal
The Respondent's own witness admitted that after the show cause letter the Claimant and turn boy were expelled from the company premises and no further action was taken. The court treated this admission as conclusive of an oral dismissal, regardless of whether the Respondent characterised it as merely sending the employee away to cool down.
Whether there were valid reasons and due process
The dismissal was unfair and unjustified under Section 45(2) of the Employment Act 2007 because the alleged reasons were never tested through a disciplinary hearing
Although the Respondent alleged mileage falsification and violence against the Personnel Manager, these reasons required proof through a disciplinary process. The computer-generated diesel records (Appendix 4) bore no signatures, had an unknown author and were not shown to originate from the Respondent's data. After expulsion no further action was taken, so the dismissal lacked fair procedure.
Whether the Claimant is entitled to remedies
The Claimant was awarded notice pay, unpaid salary and 8 months' salary as compensation for unfair dismissal
Having found the dismissal unfair, the court exercised its discretion to award one month's salary in lieu of notice, unpaid salary for April 2013 and 1–16 May 2013, and the equivalent of 8 months' salary as damages for unfair dismissal, totalling Kshs. 170,292, plus costs and interest.
Legal principles established
#- Expelling an employee from the employer's premises without further recourse to due process amounts to an oral dismissal
- A dismissal without a disciplinary hearing is unfair under Section 45(2) of the Employment Act
Court orders
#- 1.Payment of 1 month salary in lieu of notice of Kshs. 16,167
- 2.Payment of unpaid salary for April 2013 of Kshs. 16,167
- 3.Payment of unpaid salary from 1st to 16th May 2013 of Kshs. 8,622
- 4.Payment of 8 months' salary as damages for unfair dismissal of Kshs. 129,336
- 5.Total award of Kshs. 170,292
- 6.Respondent to pay costs of the suit plus interest at Court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Muthoka Mwaniki v Kenya Builders & Concrete Company Limited [2018] KEELRC 979 (KLR)", Case Analysis (2018). Cause No. 2014 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/979/eng@2018-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.