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ELRCPartially AllowedCause No. 1133 of 2013· [2018] KEELRC 1561 (KLR)

Samwel Chege Njogu v Easy Coach [2018] KEELRC 1561 (KLR)

Employment and Labour Relations Court of Kenya
27 June 2018
HWHellen S. Wasilwa
1,624 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 Easy Coach unfairly fired a bus inspector because the accuser never showed up to prove the allegations.

What this practically means

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Executive summary

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The Claimant, a bus inspector employed by the Respondent from April 2011 at a gross salary of Kshs. 14,071.53, was summarily dismissed on 22nd March 2013 after being accused of allowing an extra passenger to board a Homabay-Nairobi bus at Kisii without a ticket in exchange for Kshs. 800. The Respondent asserted the passenger, Simon Mbajah, disclosed to the chief inspector at Narok that he had paid a man in black clothes, and relied on an internal memo warning inspectors against carrying un-ticketed passengers, plus the Claimant's prior disciplinary warnings. The Claimant contended he was not given a fair hearing, that the accusing passenger was never called, and that his dismissal violated Sections 41 and 45 of the Employment Act, 2007. He sought damages for unlawful termination and unpaid terminal dues. The court found that although a disciplinary meeting was held, the key witness Mbajah neither attended nor identified the Claimant, so the finding of culpability rested on hearsay. The court held the Respondent failed to prove a valid reason and that the dismissal was unfair and unjustified. It awarded one month's salary in lieu of notice, 21 days' unpaid leave, unpaid March 2013 salary, four rest days' pay, and twelve months' salary as compensation, totalling Kshs. 200,727.42, plus a certificate of service. The Respondent was ordered to pay the costs of the suit with interest at court rates from the date of judgment.

Key legal issues

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01

Validity of the reason for dismissal

Holding

The Respondent had no valid reason to dismiss the Claimant because the passenger who allegedly paid the bribe was not called as a witness and never identified the Claimant

Reasoning

The disciplinary process relied on a written statement from one Simon Mbajah, who said he paid Kshs. 800 to a man in black uniform at Kisii, but Mbajah neither attended the hearing nor identified the Claimant. The court held the finding of culpability rested on hearsay, so the employer failed to discharge its burden under Section 45(2) of proving a valid and fair reason.

p. 2
02

Fair procedure under Sections 41 and 45

Holding

Although a disciplinary process was conducted, the absence of the accusing witness meant the hearing was not fair and the termination was unjustified

Reasoning

The Claimant was suspended, appeared before a disciplinary committee and statements were considered, but the key witness was not present and the officers who made the allegations were not called. The court found the procedure could not cure the absence of substantial evidence supporting the allegations.

p. 2
03

Remedies for unfair termination

Holding

The Claimant was awarded notice pay, unpaid leave, salary arrears, rest day pay and 12 months' salary as compensation

Reasoning

Having found the termination unfair, the court exercised its discretion under the Employment Act to award one month's notice, 21 days' unpaid leave, unpaid March 2013 salary, 4 rest days, and the equivalent of 12 months' gross salary as damages, together with a certificate of service.

p. 3

Legal principles established

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  • An employer relying on allegations of misconduct must call the accusing witness; reliance on hearsay evidence cannot sustain a finding of culpability
  • An employer bears the burden of proving both a valid reason and fair procedure for termination under Section 45(2) of the Employment Act

Court orders

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  1. 1.1 month salary in lieu of notice of Kshs. 14,071.53
  2. 2.Unpaid leave of 21 days at Kshs. 9,850
  3. 3.Unpaid salary for March 2013 of Kshs. 6,071.53
  4. 4.4 rest days for March 2013 at Kshs. 1,876
  5. 5.12 months' salary as damages for unfair termination of Kshs. 168,858.36
  6. 6.Total award of Kshs. 200,727.42
  7. 7.Claimant to be issued with a Certificate of Service
  8. 8.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 45(1),(2)(a),(2)(c)
  • Employment ActSection 35
  • Employment ActSection 35(5)

Cases cited (1)

  • Peter Okumu Oloo Vs Simba Pharmaceuticals Ltd
    [2013] EKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)

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, "Samwel Chege Njogu v Easy Coach [2018] KEELRC 1561 (KLR)", Case Analysis (2018). Cause No. 1133 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1561/eng@2018-06-27

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