Josphat Mwangi Gakingo v Radix Consulting Limited [2018] KEELRC 1000 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the reasons for termination were valid and fair
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).
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).
Whether a fair procedure was followed
No fair procedure was followed; the 10-15 minute impromptu meeting without an accompanying employee of choice violated section 41 of the Employment Act.
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.
Whether the termination was unfair notwithstanding valid reasons
Yes - unfair termination under section 45 because the employer failed to prove a fair procedure.
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.
Quantum of reliefs
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.
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.
Legal principles established
#- 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
#- 1.Judgment entered for the claimant in the sum of Kshs.928,720
- 2.Costs of the suit to the claimant
- 3.Interest on the award from the date of judgment
- 4.Award subject to relevant statutory deductions
- 5.Certificate of service to be issued forthwith in accordance with section 51 of the Employment Act
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (court not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.