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ELRCDismissedStatement of claim dated 13th August 2012, filed 15th August 2012· [2018] KEELRC 2474 (KLR)

Justus Mutahi Ihaji v Kenya Airways Limited [2018] KEELRC 2474 (KLR)

Industrial Court (Employment and Labour Relations Court)
2 February 2018
MOMAUREEN ONYANGO
2,705 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a Kenya Airways employee's unfair dismissal claim because the airline proved a valid reason and followed fair procedure.

What this practically means

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Executive summary

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The claimant, employed by Kenya Airways Limited from 1992 and rising to Supplies Officer, was summarily terminated on 20th November 2009 following a special audit of the in-flight warehouse for 2008/2009, which revealed movement of goods from the warehouse to flights without documentation and contrary to the Commercial Stores Manual procedure requiring supplies to pass through NAS Airport Services. He sought salary retained for November 2009, salary in lieu of notice, and terminal benefits of Kshs.12,199,652, alleging wrongful dismissal. The respondent maintained the termination was fair both substantively and procedurally. The claimant testified and the respondent called two witnesses. The court identified two issues: whether the termination was unfair and whether the claimant was entitled to the remedies sought. Applying Sections 41, 43 and 45 of the Employment Act and the principles in Walter Ogal Anure and Fredrick Saundu Amolo, the court held the respondent complied with both procedural fairness and substantive justification: the claimant received a show cause letter, attended three disciplinary hearings accompanied by union representatives, was allowed to present evidence and question witnesses, and pursued unsuccessful appeals to the HR Director and the CEO. Substantively, he supplied goods direct to flights against laid-down procedure and could not account for goods worth Kshs.1,157,231.12 after explanations reduced the audited figure of Kshs.11,914,044.72. The suit was dismissed with each party bearing its own costs. The court directed the respondent to tabulate the claimant's terminal benefits and the claimant to clear so as to be paid.

Key legal issues

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01

Whether the termination was procedurally fair

Holding

Procedural fairness was complied with - show cause, three disciplinary hearings with union representation, and two levels of appeal

Reasoning

The claimant was issued a show cause letter with schedules of the impugned transactions, responded to it, and was heard at three disciplinary hearings accompanied by union representatives. He could present evidence and ask questions; minutes were signed by panel chairman, union and management representatives. He appealed to the HR Director and CEO and was heard at both. He raised no complaint about the procedure.

p. 4
02

Whether there was substantive justification for the termination

Holding

Valid reasons existed - the claimant supplied goods direct to flights against laid-down procedure and could not account for goods worth Kshs.1,157,231.12

Reasoning

A special audit of the warehouse for 2008/2009 showed movement of goods with no documentation, traced to the claimant's staff number, showing transactions direct to flights contrary to the Commercial Stores Manual procedure requiring supplies to go through NAS Airport Services. The claimant admitted erroneous postings; the explained variances reduced the figure but Kshs.1,157,231.12 remained unaccounted for.

p. 4
03

Whether the claimant was entitled to the remedies sought

Holding

No, the claim failed as unfair termination was not proved

Reasoning

The damages claim of Kshs.14,199,652 was not broken down and the claimant did not prove unfair termination. However, since terminal dues under the termination letter (salary to 20th November 2009, accrued leave, notice pay) had not been paid, the court directed tabulation of terminal benefits and that the claimant clear to be paid.

p. 4

Legal principles established

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  • For termination to be fair there must be both substantive justification and procedural fairness
  • Substantive justice refers to establishment of a valid reason for termination while procedural fairness refers to the procedure adopted by the employer in effecting the termination

Court orders

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  1. 1.The whole claim fails and the claimant's suit is dismissed
  2. 2.Each party shall bear its costs of the claim
  3. 3.The respondent is directed to tabulate the terminal benefits of the claimant and the claimant is directed to go and clear so that he can be paid the said terminal benefits

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 45

Cases cited (12)

  • Dr. Ezekiel Nyangoya Okemwa –vs– Kenya Marine and Fisheries Research Institute
    Industrial Cause No. 186 of 2013
  • Mary Chemweno Kiptui –vs– Kenya Pipeline Company Limited
    Industrial Cause No. 435 of 2013
  • Walter Ogal Anure –vs– Teachers Service Commission
    (2013) eKLR
  • Fredrick Saundu Amolo –vs– Principal Namanga Mixed Day Secondary School and 2 others
    (2014) eKLR
  • Wilson Reuben Sibiya –vs– Kenya National Examinations Council
    (2016) eKLR
  • Anthony Mkala Chitavi –vs– Malindi Water Sewerage Company Limited
    (2013) eKLR
  • Elizabeth Wakanyi Kibe –vs– Telkom Kenya Limited
    (2014) eKLR
  • D. K. Njagi Marete –vs– Teachers Service Commission
    Industrial Cause No. 379 of 2009
  • Addah Adhiambo Obiero –vs– Ard Inc.
    (2014) eKLR
  • Abraham Gumba –vs– Kenya Medical Supplies Authority
    (2014) eKLR
  • John Muia Mbute and Another –vs– Rakim Rajan t/a Smokey's Bar and Restaurant
    (2016) eKLR
  • Bernard Mutunga Kiio and Charles Mutuku Mbatha –vs– Kenya Aerotech Limited
    (2015) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, Sections 41, 43 and 45)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Justus Mutahi Ihaji v Kenya Airways Limited [2018] KEELRC 2474 (KLR)", Case Analysis (2018). Statement of claim dated 13th August 2012, filed 15th August 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2474/eng@2018-02-02

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