Wakoli Fredrick Kasembeli & another v Wakoli Fredrick Kasembeli [2018] KEELRC 2129 (KLR)
The bottom line
#A Kenyan court ordered the Red Cross to pay two former security staff millions for firing them without valid reasons or a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent demonstrated a valid and fair reason for terminating the Claimants' employment
No valid reason was demonstrated; there was no connection between the investigations into forged loan documents and the termination
The termination letters gave no reasons. The Respondent's witnesses alleged a security lapse, but the investigation report of 24th June 2012 had not implicated the Claimants. Applying the reasonableness principle under Section 43 of the Employment Act, the Court found no connection between the forgery investigations and the termination, so the Respondent failed to discharge its burden of proving a valid reason.
Whether the termination complied with the procedural requirements of Section 41 of the Employment Act
The mandatory disciplinary procedure was not followed, rendering the termination procedurally unfair
Even assuming a security lapse, the Claimants were entitled to the mandatory disciplinary procedure under Section 41. The Claimants were merely summoned, questioned and handed termination letters without a proper disciplinary hearing, and their explanations were never tested through the statutory process.
Whether the Court may entertain the diplomatic immunity objection raised in final submissions
The Court declined to consider the objection as it was neither pleaded nor canvassed at the hearing
The Respondent raised diplomatic immunity for the first time in final submissions. The Court held that raising an unpleaded issue at that stage amounts to pleading and testifying in final submissions and refused to consider it in the final judgment.
Legal principles established
#- An employer must demonstrate a valid reason for termination under Section 43 of the Employment Act, and the Court is guided by the principle of reasonableness in assessing this
- Termination without reasons in the termination letter and without the mandatory disciplinary procedure under Section 41 is both substantively and procedurally unfair
- A party cannot raise a jurisdictional objection (such as diplomatic immunity) for the first time in final submissions when it was neither pleaded nor canvassed at the hearing
Court orders
#- 1.Judgment entered for the 1st Claimant, Wakoli Fredrick Kasembeli, in the sum of Kshs.1,629,616 being eight (8) months' salary in compensation for unfair termination of employment
- 2.Judgment entered for the 2nd Claimant, Josephat Ayodi Luseno, in the sum of Kshs.986,400 being twelve (12) months' salary in compensation for unfair termination of employment
- 3.The awards to attract interest at court rates from the date of delivery of judgment until payment in full
- 4.The Claimants awarded the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (constitutional basis not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wakoli Fredrick Kasembeli & another v Wakoli Fredrick Kasembeli [2018] KEELRC 2129 (KLR)", Case Analysis (2018). Cause No 923 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2129/eng@2018-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.