Barnes Mwema v Kenpoly Limited [2018] KEELRC 1649 (KLR)
The bottom line
#A Kenyan court ruled that even a justified firing is unfair if the employer skips proper disciplinary procedure, awarding the employee a year's salary.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for termination
Failure by a Human Resource Officer to bring a court matter to the employer's attention, leading to default judgment and execution, constitutes gross negligence and a valid reason for termination
The claimant, as Human Resource Officer, was tasked with personnel matters and admitted knowledge of the civil claim against the respondent. He did not deny the authenticity of the court papers, only the affidavit signature. The court found the similarity of signatures overwhelming and concluded a valid reason existed for the termination.
Procedural fairness of the termination
The termination was procedurally unfair as there was no disciplinary hearing or notice to show cause, and the termination letter was sent to the respondent's own postal address
There was no evidence of a disciplinary hearing as prescribed under the Employment Act, nor a notice to show cause. The only document was the compulsory leave letter. Further, the termination letter of 2nd November 2007 was sent to a postal address the same as the respondent's, with no explanation why it was not sent to the claimant's last known personal address, so there was no proof of receipt.
Whether the claimant remained an employee after prolonged suspension
No employee can remain on involuntary leave indefinitely; after five years without communication the claimant is deemed constructively dismissed
The claimant was sent on compulsory leave on 31st August 2007 and only concluded in 2012 that he had been dismissed. The court held that leave is an annual event and cannot run indefinitely, and that five years exceeds even the limitation period for employment claims. The claimant ought to have treated himself as constructively dismissed and sought timely remedies.
Legal principles established
#- An employer may have a valid reason for termination but if due process under the Employment Act is not followed, the termination is unfair and compensation will be awarded
- An employee on involuntary leave exceeding the statutory annual leave period without employer communication ought to consider himself constructively dismissed
Court orders
#- 1.Award of twelve months' wages as compensation for unfair termination of services, being Kshs 552,005/=, subject to statutory deductions and taxes
- 2.Claimant to have costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act over claims of unfair termination of employment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barnes Mwema v Kenpoly Limited [2018] KEELRC 1649 (KLR)", Case Analysis (2018). Cause Number 1165 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1649/eng@2018-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.