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ELRCDismissedNot stated in judgment· [2018] KEELRC 1888 (KLR)

Shadrack Muthiani Kin’goo v Apex Steel Limited [2018] KEELRC 1888 (KLR)

Employment and Labour Relations Court
23 April 2018
NMNzioki wa Makau
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenyan employees who skip disciplinary hearings after proper notice lose their right to later claim unfair dismissal in court.

What this practically means

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Executive summary

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The Claimant sued for terminal dues following his unilateral dismissal in October 2015, alleging he was never invited to a disciplinary hearing and was denied an opportunity to defend himself contrary to Section 41 of the Employment Act and Article 47 of the Constitution. He sought one month's salary in lieu of notice, damages, leave dues of Kshs. 61,440/- for four years, a certificate of service, and gratuity at 15% of monthly salary. The Respondent contended the Claimant was found in possession of company property during a search, was issued show cause letters and invitations to disciplinary hearings which he ignored, and was thereafter lawfully dismissed; it asserted he had already secured employment with China Communications Construction Co. Ltd and that his leave dues had been paid. In evidence, the Claimant admitted receipt of the show cause letter and confirmed he did not attend any disciplinary hearing, but maintained the items found were tools of his trade as a 'burry-man'. The Respondent's witnesses testified to the search, the items recovered, and the service of the notices. The court held that in an unfair dismissal claim the burden lies on the Claimant; that the Claimant was accorded a fair hearing under Section 41 but declined to take part; and that having admitted the postal address used by the Respondent, he could not claim non-receipt of notifications. The suit was dismissed with no order as to costs.

Key legal issues

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01

Whether the Claimant proved unfair dismissal

Holding

The Claimant failed to prove unfair dismissal; he was accorded a fair hearing under Section 41 but declined to attend the disciplinary hearings

Reasoning

The court found the Claimant was issued a show cause letter and invited to disciplinary hearings but failed to attend despite service to his admitted postal address. He secured alternative employment with China Communications Construction Co. Ltd, which paid his NSSF dues for October to December 2015. Having declined the opportunity to defend himself, he could not fault the Respondent for procedural unfairness, and the burden of proving unfairness was not discharged.

p. 3
02

Service of the notices inviting the Claimant to disciplinary hearing

Holding

The court accepted that the Respondent used the Claimant's admitted postal address and that he could not claim non-receipt

Reasoning

The Claimant admitted the postal address used by the Respondent to mail the letters was his own. The court found his assertion that he learned of dismissal only when the biometric machine failed to recognise his fingerprint untruthful. Consequently, the Claimant could not claim he was not notified of the disciplinary hearing.

p. 4

Legal principles established

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  • In a claim for unfair dismissal, the burden rests on the Claimant to prove the dismissal was unfair
  • An employee who fails to attend a disciplinary hearing after due notification cannot later fault the employer for lack of hearing

Court orders

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  1. 1.The Claimant's suit is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44
  • Employment ActSection 45
  • Constitution of Kenya 2010Article 47

Cases cited (7)

  • Kenneth Njiru Njorani v Dodhia Packaging Ltd
    Cause No. 431 of 2010
  • Shankar Saklani v DHL Global Forwarding (K) Ltd
    [2012] eKLR
  • Kenya Union of Journalists v The Standard Group Limited
    Cause No. 746 of 2009 (unreported)
  • Lillian Nyaboe Nyaribi v Wireless Innovations Nairobi Ltd
    [2013] eKLR
  • William Kairithia Gacheru v East African Packaging Industries Ltd
    [2016] eKLR
  • Banking Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd
    [2014] eKLR
  • David Njeka v Lavage Dry Cleaners Ltd
    [2013] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over a claim for unfair termination and terminal dues (Employment Act 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Shadrack Muthiani Kin’goo v Apex Steel Limited [2018] KEELRC 1888 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1888/eng@2018-04-23

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