Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause No. 1024 of 2012· [2018] KEELRC 1533 (KLR)

Robert Macharia Kinyanjui v Gachege Tea Factory [2018] KEELRC 1533 (KLR)

Employment and Labour Relations Court of Kenya
27 June 2018
1,345 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that an employee who skips his own disciplinary hearing cannot later claim his dismissal was unfair.

What this practically means

#

Executive summary

#
The Claimant, retained by the Respondent as a factory worker on 1 August 2006, sued for damages for unlawful dismissal and non-payment of dues, averring that the Respondent maliciously reported him to the police for stealing tea leaves, suspended him on 10 August 2009, and thereafter never communicated with him, while he was drawing a monthly salary of Kshs 11,364.90. The Respondent denied the allegations, asserting the Claimant was found in possession of made tea without authority, was given an opportunity to defend himself at a disciplinary process, and was terminated for gross misconduct on 16 September 2009 with terminal dues processed; it further argued that the Claimant was discharged, not acquitted, under Section 87(a) of the Criminal Procedure Code. The court found the Claimant was a permanent employee notwithstanding his assertion of a three-year contract, but that he was invited to a disciplinary hearing and refused to attend because a criminal case was pending. The court held that the Respondent had given him a fair chance to be heard and his own omission rendered his case untenable. The claim was dismissed except for amounts payable under the termination letter: salary for days worked, two months' salary in lieu of notice, accrued leave pay on prorata basis and gratuity for years served. There was no order as to costs.

Key legal issues

#
01

Fairness of the termination process

Holding

The termination was fair because the Respondent informed the Claimant of the allegation and invited him to a disciplinary hearing, which he declined to attend owing to the pending criminal case

Reasoning

The court found the Claimant was suspended on 10 August 2009 and invited to a disciplinary hearing. He admitted in cross-examination that he refused to attend because a criminal case was pending. The court held the Respondent had given him a fair chance to be heard and his own omission rendered his case untenable, defeating the claim of unfair termination under Section 45 of the Employment Act.

p. 2
02

Status of employment - permanent vs fixed-term

Holding

Despite the Claimant's contention that he was on a 3-year contract, the contract letter showed he was a permanent employee

Reasoning

The Claimant argued he was on a three-year contract ending 21/8/2009, meaning termination was imminent. The court examined the contract letter and found it indicated permanent employment, rejecting the fixed-term argument, though this did not change the outcome given the failure to attend the disciplinary hearing.

p. 2
03

Effect of discharge under Section 87(a) CPC on the employment claim

Holding

The Claimant's discharge under Section 87(a) of the Criminal Procedure Code did not establish acquittal or render the termination malicious

Reasoning

The court noted the criminal case (No. 123/2000) never proceeded to hearing and the Claimant was discharged under Section 87(a) CPC on 25/1/2011. The court accepted the Respondent's position that this was a discharge, not an acquittal, and this did not invalidate the disciplinary process or the termination for gross misconduct.

p. 2

Legal principles established

#
  • An employee who is accorded an opportunity to be heard at a disciplinary hearing but voluntarily fails to attend cannot later complain of unfair termination for lack of a hearing

Court orders

#
  1. 1.Dismissal of the Claimant's case for lack of merit
  2. 2.Retention of the Claimant's entitlement to what was payable per the termination letter: salary for days worked, 2 months salary in lieu of notice, pay in lieu of accrued leave on prorata basis and gratuity for years served
  3. 3.No order as to costs

Authorities

#

Legislation

  • Employment ActSection 45
  • Employment ActSection 43(1)
  • Criminal Procedure CodeSection 87(a)

Cases cited (3)

  • Mary Chemweno Kiptui Vs Kenya Pipeline Company Limited
    Industrial Court of Kenya at Nairobi Cause No. 435 of 2013
  • Selvarajan Vs Race Relations Board
    [1976] 1 ALL ER 12 at 19
  • Anarita Karimi Njeru Vs The Attorney General
    (1979) KLR 154
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (suit for unfair termination and non-payment of dues)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Robert Macharia Kinyanjui v Gachege Tea Factory [2018] KEELRC 1533 (KLR)", Case Analysis (2018). Cause No. 1024 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1533/eng@2018-06-27

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