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ELRCPartially AllowedNot stated in the judgment as provided· [2018] KEELRC 2130 (KLR)

Joseph Kinuthia Mungora v East African Rail & Handling Logistics & another [2018] KEELRC 2130 (KLR)

Employment and Labour Relations Court
12 April 2018
LNLinnet Ndolo
849 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, formerly Mombasa Branch Manager of the first Respondent (a clearing and forwarding subsidiary of the second Respondent), sued alleging unfair termination. He was suspended over the theft of clients' cargo between 29.1.2016 and 3.2.2016, subjected to a disciplinary hearing at which a committee found him guilty of negligent performance of duty and recommended a written final warning. He was reinstated by letter dated 8.8.2016 but was then summarily dismissed by letter dated 16.8.2016 without any further hearing before the sanction was enhanced. The Respondents denied unfair termination and counterclaimed for Kshs.21,178,554.39 being the value of lost cargo, plus general damages. The Respondents did not attend the hearing despite service. The court framed three issues: unfairness of the dismissal, the reliefs, and the counterclaim. Applying section 45(2) of the Employment Act, it held the Respondents had failed to discharge the burden of proving a valid and fair reason and a fair procedure; the Claimant's unchallenged evidence stood, and the summary dismissal was found unfair. Under section 49, the court awarded Kshs.600,000 as three months' notice pay and Kshs.1,200,000 as six months' gross pay compensation, having considered the appointment letter's notice clause and the Claimant's two years of service. The medical expenses claim of Kshs.251,985 was refused for lack of evidence, and the unprosecuted counterclaim was dismissed with costs. Judgment was entered for the Claimant for Kshs.1,800,000 plus costs and interest, subject to statutory deduction.

Key legal issues

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01

Whether the summary dismissal was unfair

Holding

The dismissal was unfair; the Respondents adduced no evidence to prove a valid and fair reason or fair procedure, and enhancement of the disciplinary sanction from final warning to summary dismissal was done without hearing the Claimant

Reasoning

Section 45(2) places the burden on the employer to prove both a valid and fair reason and a fair procedure. The Respondents, though served, did not attend the hearing and adduced no evidence. The Claimant's testimony that the dismissal was for no good cause and without a fair hearing after reinstatement therefore stood unchallenged, and the court found the summary dismissal unfair.

p. 2
02

Whether the reliefs sought should be granted

Holding

Notice pay of 3 months and compensation equivalent to 6 months' gross pay awarded; medical expenses claim refused for lack of evidence

Reasoning

Under section 49 of the Employment Act the court awarded three months' salary in lieu of notice, guided by clause 14.1.2 of the appointment letter, and six months' gross pay as compensation, taking into account the Claimant's short service of two years and the unlikelihood of securing comparable employment within six months. The medical expenses claim failed for want of proof that it was a benefit under the employment medical scheme.

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03

Whether the Respondents' counterclaim should be allowed

Holding

Counterclaim dismissed with costs as it was not prosecuted

Reasoning

The Respondents did not attend the hearing despite service and did not prosecute their counterclaim for Kshs.21,178,554.39 plus general damages for loss of business and reputation. An unprosecuted claim cannot be allowed, and the court dismissed it with costs.

p. 2

Legal principles established

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  • Under section 45(2) of the Employment Act, termination is unfair if the employer fails to prove a valid and fair reason and a fair procedure; where the employer adduces no evidence the employee's unchallenged account stands

Court orders

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  1. 1.Judgment entered for the Claimant in the sum of Kshs.1,800,000 plus costs and interest from the date hereof, subject to statutory deduction
  2. 2.Award of Kshs.600,000 being 3 months' salary in lieu of notice
  3. 3.Award of Kshs.1,200,000 being 6 months' gross pay as compensation for unfair termination
  4. 4.Claim for reimbursement of medical expenses of Kshs.251,985 dismissed for lack of evidence
  5. 5.Counterclaim dismissed with costs

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 49
Jurisdiction invoked
Employment Act, sections 45(2) and 49

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, "Joseph Kinuthia Mungora v East African Rail & Handling Logistics & another [2018] KEELRC 2130 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2130/eng@2018-04-12

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