Mbogho v Kenya Safari Lodges and Hotels Limited (Cause 974 of 2016) [2018] KEELRC 2606 (KLR)
The bottom line
#A Kenyan employer with a valid reason to fire its General Manager still lost because it broke its own 30-day compulsory leave rule during the disciplinary process.
What this practically means
#Executive summary
#Key legal issues
#Whether the reason for termination was valid under Section 43 of the Employment Act
The Respondent proved a valid reason: genuine concerns regarding the business's performance during the Claimant's tenure passed the range of reasonable responses test
The Court applied Section 43 of the Employment Act, which places the burden of proving the reason for termination on the employer. Citing the Court of Appeal in Reuben Ikatwa and the range of reasonable responses test from Halsbury's Laws, the Court held that the genuine performance concerns constituted a valid reason that a reasonable employer could act upon, and did not substitute its own view for the Board's.
Whether the disciplinary process met the procedural fairness requirements of Section 41 of the Employment Act
The process was procedurally unfair because the Respondent breached its own rule capping compulsory leave at 30 days
The Claimant was sent on compulsory leave for 30 days from 5th April 2016, then repeatedly asked to stay away beyond that period, contrary to Clause 5.2(a) of the Respondent's Terms and Conditions of Service limiting compulsory leave to thirty days. No justification was advanced. Failure to follow internal disciplinary rules breached Section 41. However, the Court rejected claims of inadequate time and denial of accompaniment, finding no evidence the Claimant requested adjournment or representation.
Whether the Claimant was still on probation at the time of termination
No; the Claimant had served about eight months, beyond the six-month probation period in his appointment letter
The appointment letter of 17th December 2015 provided for a six-month probation. By the effective termination date of 12th August 2016 the Claimant had served close to eight months as General Manager. The Court therefore rejected the HR Manager's testimony that the Claimant was still on probation, which would otherwise have altered the applicable fairness standards.
What remedies flow from the finding of procedural unfairness
Compensation limited to three months' salary given the valid reason for termination and the Claimant's length of service; other heads refused
Although the Respondent had a valid reason, the procedural breach warranted compensation. The Court exercised discretion under the Employment Act to award three months' salary (Kshs. 985,542), taking into account length of service and the existence of a valid reason. Notice pay and leave pay had been paid; salary, allowances and gratuity for the unexpired contract and general damages were anticipatory or unsupported and were refused. A certificate of service was ordered.
Legal principles established
#- Under Section 43 of the Employment Act the employer bears the burden of proving a valid reason for termination, failing which the termination is unfair
- The validity of the reason for dismissal is tested against the range of reasonable responses of a reasonable employer, not the tribunal's own view
- Compliance with the employer's own internal disciplinary rules is a component of procedural fairness under Section 41 of the Employment Act
Court orders
#- 1.Judgment entered in favour of the Claimant in the sum of Kshs. 985,542 being 3 months' salary in compensation for unfair termination of employment
- 2.Interest at court rates on the award from the date of judgment until payment in full
- 3.The Claimant is entitled to a certificate of service
- 4.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (labour dispute, first instance)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbogho v Kenya Safari Lodges and Hotels Limited (Cause 974 of 2016) [2018] KEELRC 2606 (KLR)", Case Analysis (2018). Statement of Claim dated 9th December 2016 (ELRC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2606/eng@2018-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.