Amos Mathenge Muchai v Bradshaws of Mount Kenya Limited [2018] KEELRC 1733 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee without a hearing is unfair, even if the boss suspects misconduct, and awarded him three months' salary.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination of employment
The dismissal was unfair and unlawful because the Claimant was not accorded a hearing as required by Section 41 of the Employment Act, notwithstanding possible valid grounds for dismissal.
The Respondent alleged the Claimant assisted former employees who set up a rival business, but placed no evidence before the court to prove the misconduct. Even where grounds for dismissal may have existed, the termination was abrupt and the Claimant was not given the safeguards of Section 41 of the Employment Act, which embody the procedural fairness guaranteed by Article 47 of the Constitution. The dismissal was therefore unfair and compensation was warranted.
Burden of proof on alleged gross misconduct
The Respondent failed to prove the alleged subterfuge and dealings with a rival business.
The Respondent alleged the Claimant visited the rival firm's premises and tested its machines, in breach of his contract. The court found that despite these allegations, no evidence was placed before the court establishing the misconduct. Allegations of a breach of contract of employment must be substantiated by evidence, and the Respondent's reliance on rumours and a decoy's reports did not discharge that burden.
Entitlement to service pay where employee contributes to NSSF
Service pay is not payable to an NSSF contributor.
The Claimant sought service pay for six completed years of service. The Respondent submitted, and the court accepted, that as a member of the National Social Security Fund the Claimant was a contributory to the scheme and therefore statutorily disentitled to service pay. This disposes of the service pay head without the need for further proof.
The Respondent's counterclaim for an outstanding loan
The Claimant was liable for the balance of the Kshs. 50,000/- loan, having repaid only Kshs. 2,000/-.
The Respondent counterclaimed for Kshs. 48,000/- being the balance of an advance loan granted to the Claimant on 29 March 2017, repayable through salary deductions. The Claimant admitted receiving the advance and did not contest owing the money. The court held him liable and set off the amount against the compensation awarded to the Claimant, leaving a net payment of Kshs. 34,500/- to the Claimant.
Legal principles established
#- An employee must be accorded a hearing under Section 41 of the Employment Act before termination, being the procedural fairness encompassed in Article 47 of the Constitution; dismissal without such a hearing is unfair even if grounds may have existed.
- Service pay is not payable to an employee who is a contributor to the NSSF scheme.
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for Kshs. 82,500/- (three months' salary as compensation for unfair termination)
- 2.Claimant to be issued with a Certificate of Service
- 3.Judgment entered for the Respondent against the Claimant on the counterclaim for Kshs. 48,000/-
- 4.The sum due to the Claimant offset against the sum due to the Respondent, with the Claimant to receive Kshs. 34,500/-
- 5.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act 2007 (Article 162(2) jurisdiction implied; not expressly cited in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amos Mathenge Muchai v Bradshaws of Mount Kenya Limited [2018] KEELRC 1733 (KLR)", Case Analysis (2018). Suit No 256 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1733/eng@2018-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.