Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 451 of 2014· [2018] KEELRC 2605 (KLR)

Eboyi v Kashangaki (Cause 451 of 2014) [2018] KEELRC 2605 (KLR)

Employment and Labour Relations Court
17 December 2018
NMNzioki wa Makau
884 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that dismissing an employee for misconduct without a hearing is unlawful, and that employment claims can only cover the last three years.

What this practically means

#

Executive summary

#
The Claimant sued the Respondent for terminal dues arising from alleged wrongful dismissal, claiming notice pay of Kshs. 42,000, service pay of Kshs. 182,000 for 13 years, overtime of Kshs. 182,000, and general damages of Kshs. 168,000, plus costs and interest. The Respondent denied 13 years of employment, admitting only intermittent and later full-time engagement, and asserted that the Claimant was summarily dismissed for gross insubordination after verbal warnings, relying on Section 44 of the Employment Act. Only the Claimant testified; the Respondent did not attend the hearing. The court found the employment relationship admitted, and held that despite reliance on Section 44, the Respondent was bound to comply with Section 41 of the Employment Act, which requires an employer to explain the reasons for termination and to hear and consider the employee's representations before dismissal for misconduct. Having received no such safeguards, the Claimant was dismissed unlawfully. However, applying Section 90 of the Employment Act, the court limited the recoverable claims to the three years preceding the cause of action. The court awarded one month's salary in lieu of notice (Kshs. 14,000), leave pay for three years (Kshs. 42,000), service pay for 12 years at 15 days per completed year (Kshs. 84,000), compensation for unlawful dismissal equivalent to six months' salary (Kshs. 84,000), and costs of the suit. The claims for overtime and the pleaded general damages were not granted as sought. Judgment was delivered at Nairobi on 17 December 2018 by Nzioki wa Makau, Judge.

Key legal issues

#
01

Whether summary dismissal without a hearing was lawful

Holding

The dismissal was unlawful because the Respondent did not afford the Claimant the hearing mandated by Section 41 of the Employment Act before summarily dismissing him for misconduct.

Reasoning

Section 41(1) requires an employer, before terminating on grounds of misconduct, to explain the reasons in a language the employee understands and allow a representative; Section 41(2) requires the employer to hear and consider representations even in summary dismissal under section 44. The Respondent admitted summarily dismissing the Claimant after verbal warnings but gave no safeguards. Non-compliance rendered the dismissal unlawful notwithstanding reliance on Section 44.

p. 2
02

Extent of recoverable dues given limitation

Holding

Although the Claimant had a valid claim, recovery was confined to the three years preceding the cause of action under Section 90 of the Employment Act.

Reasoning

The Claimant pleaded 13 years of service and claimed dues for that whole period. The court applied Section 90 of the Employment Act, which limits employment claims to three years preceding accrual of the cause of action. It therefore adjusted the reliefs: notice pay at one month's salary of Kshs. 14,000, three years' leave pay, and service pay computed at 12 years at 15 days per completed year.

p. 2

Legal principles established

#
  • An employer must, before summarily dismissing an employee for misconduct, afford the employee a hearing as required by Section 41 of the Employment Act; reliance on Section 44 does not dispense with that requirement.
  • Employment claims are limited to three years preceding the accrual of the cause of action.

Court orders

#
  1. 1.One month salary in lieu of notice – Kshs. 14,000/-
  2. 2.Leave pay for 3 years – Kshs. 42,000/-
  3. 3.Service pay for 12 years @ 15 days for each completed year of service – Kshs. 84,000/-
  4. 4.Compensation for unlawful dismissal for 6 months – Kshs. 84,000/-
  5. 5.Costs of the suit

Authorities

#

Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 44
  • Employment ActSection 45(5)
  • Employment ActSection 90
  • Employment ActSection 42(1)

Cases cited (5)

  • Fredrick Were v MK Jefirey's Hauliers
    [2013] eKLR
  • Michael Aloyo Ulage v Gitonga Stanley
    [2013] eKLR
  • Joseph Sitati v Kenya Ports Authority
    [2010] eKLR
  • Moses Kaunda Moro v CMC Motors Group Ltd
    [2013] eKLR
  • Peter Gichana Mwamba v M/s Easy Coach Ltd
    [2012] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act; claim for terminal dues for wrongful dismissal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Eboyi v Kashangaki (Cause 451 of 2014) [2018] KEELRC 2605 (KLR)", Case Analysis (2018). Cause No 451 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2605/eng@2018-12-17

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