Peterson Karianjahi & another v Nairobi City County [2019] KEELRC 342 (KLR)
The bottom line
#Nairobi City County's dismissal of two workers was ruled unfair because the county couldn't prove the reason or show they were heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent proved a valid reason for dismissal on grounds of gross misconduct
The dismissal letter did not state the reasons for the gross misconduct alleged, so the employer failed to discharge the Section 43 burden; termination was substantively unfair
The court noted the show cause letters' responses were not on record and the dismissal letter of 2nd September 2013 gave no details of the gross misconduct. Section 43 obliges the employer to prove the reasons for termination. These omissions showed the Claimants were never informed of the reasons for dismissal, rendering the dismissal substantively unfair under Section 45(2).
Whether the Claimants were accorded a fair hearing before dismissal
No disciplinary process under Section 41 was conducted; the HRMAC minutes did not show the Claimants were present and no invitation letters existed; termination was procedurally unfair
The Respondent relied on HRMAC minutes of 22/6/2013, but the minutes did not list the Claimants among those present and there was no letter inviting them. Section 41 requires explanation of reasons and hearing of representations before dismissal. In their absence, the Claimants were not subjected to the disciplinary process envisioned by the Employment Act.
Whether the Respondent's contention that non-response to the notice to show cause waived the Claimants' right to be heard could stand
The Respondent failed to establish even that the show cause letters were responded to; the omissions undermined the fairness of the process
The court observed it was not clear whether the Claimants responded to the show cause letters as no response was annexed. RW1 admitted the Notice to Show Cause letters were not produced in evidence. Consequently the Respondent's submissions on waiver and procedural compliance could not sustain a finding of fair procedure.
Legal principles established
#- An employer bears the burden of proving the reason(s) for termination; failure to do so renders the termination unfair under Section 45
- Before termination for misconduct, an employer must explain the reasons to the employee and hear and consider the employee's representations as required by Section 41
Court orders
#- 1.Award to 1st Claimant: 1 month's salary in lieu of notice Kshs. 33,040; unpaid salary for 23/5/2013 to 2/9/2013 Kshs. 106,829; 8 months' salary as compensation for unfair termination Kshs. 264,320 - total Kshs. 404,189
- 2.Award to 2nd Claimant: 1 month's salary in lieu of notice Kshs. 31,900; unpaid salary for 23/5/2013 to 2/9/2013 Kshs. 103,143; 8 months' salary as compensation for unfair termination Kshs. 255,200 - total Kshs. 390,243
- 3.Awards less statutory deductions
- 4.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act (first-instance jurisdiction under Sections 12(3)(vii) and related provisions of the Employment Act, 2007 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peterson Karianjahi & another v Nairobi City County [2019] KEELRC 342 (KLR)", Case Analysis (2019). Cause No. 1158 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/342/eng@2019-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.