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ELRCPartially AllowedCause No 538 of 2014· [2018] KEELRC 1000 (KLR)

Josphat Mwangi Gakingo v Radix Consulting Limited [2018] KEELRC 1000 (KLR)

Employment and Labour Relations Court
28 September 2018
2,836 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 a dismissal unfair — and awarded the employee nearly Kshs.1 million — simply because the employer skipped a fair hearing before firing him.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 8 August 2011 as a Technical Consultant on a monthly salary of Kshs.186,000 at termination, sued for terminal dues and compensation for unfair termination on 12 March 2014, claiming Kshs.4,631,930. The respondent admitted the employment but defended the termination on grounds of poor performance and absconding, asserting the claimant was heard at a meeting before dismissal. The court framed two issues: whether the termination was unfair, and whether the reliefs should be granted. On the evidence, including unchallenged emails evidencing client complaints about delayed projects and a seven-day absence without leave in September 2013, the court found valid and fair reasons for termination amounting to gross misconduct under section 44(4)(a) and (c) of the Employment Act. However, the summary 10-15 minute impromptu meeting, in which the claimant's explanation was dismissed dismissively and he was denied the opportunity to be accompanied by a fellow employee of his choice, violated the mandatory procedure in section 41; no certificate of service was issued either. The termination was therefore unfair under section 45 despite valid reasons. The court awarded one month's salary in lieu of notice (Kshs.135,000), three months' compensation (Kshs.554,538.87), salary for 12 days worked in March 2014 (Kshs.52,258) and 36 days' accrued leave (Kshs.186,928.10), a total of Kshs.928,720 with costs and interest, subject to statutory deductions. Claims for house allowance, severance pay, medical cover arrears and salary increment arrears were declined. A certificate of service was to be issued forthwith. Judgment dated 28 September 2018 at Nairobi, delivered by Onesmus N. Makau, Judge.

Key legal issues

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01

Whether the reasons for termination were valid and fair

Holding

The employer proved valid and fair reasons on a balance of probability - poor performance and absence without leave amounted to gross misconduct under section 44(4)(a) and (c).

Reasoning

The court relied on unchallenged emails (Exhibits D.3 to D.8) showing client and management complaints about delayed projects and poor communication, plus the claimant's own admission that he left work early. His seven-day absence without leave in September 2013 was proved. Together these constituted gross misconduct under section 44(4)(a) and (c) and valid reasons under sections 43 and 45(2)(a) and (b).

p. 3
02

Whether a fair procedure was followed

Holding

No fair procedure was followed; the 10-15 minute impromptu meeting without an accompanying employee of choice violated section 41 of the Employment Act.

Reasoning

The claimant was summoned to a brief standing meeting where his explanation was dismissed as 'bullshit' and he was told he was done. He was not offered the option of a accompanying fellow employee or representative as section 41 mandates, nor given adequate time to prepare his defence despite his senior position. No certificate of service was issued. The process was therefore not just and equitable.

p. 3
03

Whether the termination was unfair notwithstanding valid reasons

Holding

Yes - unfair termination under section 45 because the employer failed to prove a fair procedure.

Reasoning

Section 45(2) requires proof of both valid reasons and fair procedure. Having found valid reasons but no fair procedure (no section 41 hearing and no certificate of service under section 51), the court concluded the termination was unfair within the meaning of section 45.

p. 3
04

Quantum of reliefs

Holding

One month's salary in lieu of notice (Kshs.135,000), three months' salary compensation (Kshs.554,538.87), salary for 12 days worked in March 2014 (Kshs.52,258) and leave for 36 days (Kshs.186,928.10), totaling Kshs.928,720.

Reasoning

In assessing compensation under sections 49 and 50, the court considered the short period of employment, the claimant's contributory misconduct, and his seniority which meant he was unlikely to secure alternative employment quickly. Leave was awarded because the defence never rebutted it with leave records.

p. 3

Legal principles established

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  • Under section 41 of the Employment Act the employer must explain the reason for termination to the employee in a language he understands, in the presence of a fellow employee or shop floor union representative of his choice, and invite representations before deciding; the procedure need not mirror court proceedings but must be fair and dignified.
  • Termination is unfair under section 45(2) if the employer fails to prove both valid and fair reasons and a fair procedure; valid reasons alone do not render a termination fair.
  • Salary increases are a managerial prerogative exercisable at the employer's discretion absent an agreed automatic increment, provided pay is not below the statutory minimum.

Court orders

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  1. 1.Judgment entered for the claimant in the sum of Kshs.928,720
  2. 2.Costs of the suit to the claimant
  3. 3.Interest on the award from the date of judgment
  4. 4.Award subject to relevant statutory deductions
  5. 5.Certificate of service to be issued forthwith in accordance with section 51 of the Employment Act

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 44(4)(a) and (c)
  • Employment Actsection 45
  • Employment Actsection 45(2)(a) and (b) and 45(5)
  • Employment Actsections 49 and 50
  • Employment Actsection 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (court not expressly stated in the judgment)

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, "Josphat Mwangi Gakingo v Radix Consulting Limited [2018] KEELRC 1000 (KLR)", Case Analysis (2018). Cause No 538 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1000/eng@2018-09-28

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