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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 542 (KLR)

George Muriithi Muthee v C. Muturi Kigano [2019] KEELRC 542 (KLR)

Employment and Labour Relations Court
14 October 2019
HWHellen Wasilwa
1,260 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, an associate advocate employed by the Respondent law firm on 1st October 2015 at a gross monthly salary of KShs. 60,000, sued on 2nd March 2016 challenging his termination on 25th January 2016. He sought one month's salary in lieu of notice, accrued leave pay, general damages for unfair termination, and costs. The Respondent contended that the Claimant accepted service of court documents in his own capacity rather than the firm's name, and that investigations revealed other letters and fee notes issued in the firm's name on other matters, causing it to lose confidence in him; it maintained the dismissal was justified as fundamental repudiation of the employment contract. In evidence, the Respondent's witness admitted that no performance review was conducted, no notice was given, and no hearing was accorded the Claimant before termination. The court found that although the Respondent had some reasons to subject the Claimant to a disciplinary process - his acting for another law firm while employed, which he did not deny - it breached section 41 of the Employment Act 2007 by failing to give him a chance to defend himself. Applying section 45(2), the court held the termination unfair. The court awarded one month's salary in lieu of notice (KShs. 60,000) and three months' salary as compensation for unfair termination (KShs. 180,000), totalling KShs. 240,000, with costs and interest at court rates. The accrued leave claim was not included in the award.

Key legal issues

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01

Procedural fairness under section 41 of the Employment Act

Holding

The termination was procedurally unfair because the Claimant was not heard before termination

Reasoning

The Respondent admitted it failed to accord the Claimant a hearing before terminating him. Section 41 requires an employer to explain the reasons for contemplated termination on grounds of misconduct or poor performance and to hear and consider the employee's representations. Absent such a hearing, due process was breached and the termination was unfair.

p. 2
02

Validity of reason for termination under section 45(2)

Holding

The Respondent had some reasons (working for another law firm) but did not follow fair procedure; termination was unfair

Reasoning

Section 45(2) requires the employer to prove a valid and fair reason related to conduct, capacity or compatibility and that fair procedure was followed. Although the Respondent attributed the dismissal to poor performance arising from the Claimant acting for another law firm, which he did not deny, the absence of a hearing rendered the termination unfair.

p. 3

Legal principles established

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  • An employer must accord an employee a hearing before terminating employment on grounds of misconduct, poor performance or physical incapacity, failing which the termination is unfair

Court orders

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  1. 1.1 month's salary in lieu of notice of KShs. 60,000
  2. 2.3 months' salary as compensation for unfair termination, KShs. 180,000
  3. 3.Total award of KShs. 240,000 to the Claimant
  4. 4.Costs of the suit to the Claimant plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Act 2007section 41
  • Employment Act 2007section 42(1)
  • Employment Act 2007section 43(1)
  • Employment Act 2007section 44(3) and (4)
  • Employment Act 2007section 45(2)

Cases cited (2)

  • Mary Chemweno Kiptui vs. Kenya Pipeline Company Limited
    [2014] eKLR
  • Richard Otieno Mbewa vs. Milly Glass Works Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "George Muriithi Muthee v C. Muturi Kigano [2019] KEELRC 542 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/542/eng@2019-10-14

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