Philip N. Mulwa v African Apparels Epz Limited [2018] KEELRC 2302 (KLR)
The bottom line
#A Kenyan court ruled that even where an employee may be at fault, firing them without a hearing makes the dismissal unfair and payable.
What this practically means
#Executive summary
#Key legal issues
#Fair procedure before dismissal
The dismissal was procedurally unfair because the claimant was not given an opportunity to explain the loss before dismissal
Although some fabric went missing and the claimant, as head of stores, bore ultimate responsibility, no evidence showed he was called upon to explain the loss before dismissal. The dismissal letter referred to a discussion with the human resource manager but did not disclose that he was asked to account for the loss. This violated section 45 of the Employment Act, which requires the employee to be furnished with reasons and given an opportunity to explain before dismissal.
Substantive justification for dismissal
The loss of fabric from the claimant's department could amount to negligence justifying dismissal
The court accepted that some fabric went missing and that the claimant, as the person in charge of stores, bore ultimate responsibility. A loss which cannot be reasonably explained amounts to negligence on his part for which he could be validly dismissed. However, this potential substantive justification could not save the dismissal because the procedural requirements were not met.
Legal principles established
#- A valid dismissal requires both substantive justification (valid and justifiable reasons) and a fair procedure including an opportunity to be heard
- Failure to adhere to the twin requirements of valid reasons and fair procedure renders a dismissal unfair
Court orders
#- 1.One month's salary in lieu of notice of KShs 25,000
- 2.Seven days wages for January 2010 of KShs 5,833
- 3.Six months' salary as compensation for unfair termination of KShs 150,000
- 4.Costs of the suit to the claimant
- 5.The award to be subject to taxes and any terminal dues already paid to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Philip N. Mulwa v African Apparels Epz Limited [2018] KEELRC 2302 (KLR)", Case Analysis (2018). Cause Number 1047 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2302/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.