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ELRCPartially AllowedNot stated in the judgment· [2018] KEELRC 2221 (KLR)

Benjamin Tumbo Matonoi v Board of Trustees National Social Security Fund [2018] KEELRC 2221 (KLR)

Employment and Labour Relations Court
8 March 2018
HWHellen Wasilwa
1,185 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that even under the old Employment Act, workers had to be heard before dismissal, awarding the officer damages and costs.

What this practically means

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Executive summary

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The Claimant, a Clerical Officer employed by the Respondent from 2.1.1980, sued for damages for unlawful termination following his summary dismissal on 12.3.2004 over allegations of inflating members' accounts. He alleged he was neither told the allegations nor given a chance to defend himself. The Respondent admitted the employment relationship and maintained that the dismissal was for good cause, that due procedure was followed, that the Claimant was paid his full dues, and that under the 2004 legal regime (Employment Act Cap 26) no duty of natural justice applied, citing Ezekiel Nyangoya Okemwa vs Marine & Fisheries Research Institute (2016) eKLR on employment at will. The court found that although the Claimant was served with a show cause letter dated 9.3.2004 and responded on 11.3.2004, the summary dismissal letter did not state reasons - permissible under the repealed Cap 226 - but that the employer was still bound by principles of natural justice. The court held the right to a fair hearing is inherent and that the Claimant was dismissed without an opportunity to be heard on the allegations, rendering the dismissal unfair and unjustified. The court awarded six months' salary (Kshs. 399,780) as damages for unfair dismissal, one month's salary in lieu of notice (Kshs. 66,630), payment of accrued pension, and costs plus interest at court rates from the date of judgment. Judgment delivered on 8 March 2018 by Hellen Wasilwa J.

Key legal issues

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01

Applicability of natural justice under the old Employment Act regime

Holding

The dismissal was unfair and unjustified because the Claimant was not accorded an opportunity to be heard, notwithstanding the old employment-at-will doctrine cited by the Respondent

Reasoning

The Respondent relied on authority that under the old law employers could terminate at will without observing natural justice. The court rejected a purely at-will approach, holding that the right to a fair hearing is inherent and survived under Cap 226. Although the summary dismissal letter did not state reasons (not mandatory then), the Claimant was dismissed without being heard on the allegations against him, rendering the dismissal unfair and unjustified.

p. 2

Legal principles established

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  • Under the repealed Employment Act Cap 226, although an employer was not obliged to give reasons for termination, principles of natural justice and the right to a fair hearing still applied

Court orders

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  1. 1.Award of an equivalent of 6 months' salary (Kshs. 399,780) as damages for unfair dismissal
  2. 2.Award of one month's salary in lieu of notice (Kshs. 66,630)
  3. 3.Payment of the Claimant's accrued pension as contributed towards the Pension Scheme
  4. 4.Costs of the suit to the Claimant plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActCap 226 (repealed)
  • Employment ActCap 26 (as cited by Respondent's counsel)

Cases cited (1)

  • Ezekiel Nyangoya Okemwa vs Marine & Fisheries Research Institute
    (2016) eKLR
Jurisdiction invoked
Transferred from the High Court; statutory employment jurisdiction under the Employment Act (Cap 226, now repealed)

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, "Benjamin Tumbo Matonoi v Board of Trustees National Social Security Fund [2018] KEELRC 2221 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2221/eng@2018-03-08

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