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ELRCPartially AllowedCause No. 1208 of 2016· [2019] KEELRC 768 (KLR)

Alexina Mukasiali Mutsami v The Institute of the Daughters of Mary Help of Christians (Salesian Sisters of St. John Boasco) Maria Romero Children’s Home [2019] KEELRC 768 (KLR)

Employment and Labour Relations Court
17 September 2019
2,654 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a dismissed house helper 12 months' salary because her employer could not prove the dismissal reasons or show she was heard before dismissal.

What this practically means

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Executive summary

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The Claimant, a house helper employed by the Respondent children's home from 2 January 2015 on an annually renewed contract, was summarily dismissed on 11 May 2016 on grounds of absence without lawful cause and negligence, earning a gross salary of Kshs. 14,423. She claimed the dismissal was unfair and unlawful for want of a valid reason, breach of Sections 41, 43, 45 and 47(5) of the Employment Act, and violation of natural justice, seeking 12 months' compensation, a declaration of unfairness, a certificate of service and costs. The Respondent justified the dismissal under Section 44(4)(a) as summary dismissal for absenteeism, contending the Claimant was heard and her dues paid. The court framed three issues: validity of reasons for dismissal, fairness of the hearing, and entitlement to remedies. On evidence, RW1 admitted that warnings said to have been issued were not documented or filed as required by the Respondent's own Employees Handbook, and the Respondent failed to produce the muster roll or attendance records. The court found the Respondent had discharged none of its burden under Section 43 and had no valid reason for dismissal. On procedure, RW1 conceded the dismissal letter was ready before the Claimant was heard, showing a predetermined decision contrary to Section 41. The dismissal was declared unfair and unjustified under Section 45(2). The court awarded compensation of 12 months' salary (Kshs. 173,076), ordered issuance of a certificate of service, and awarded the Claimant costs of the suit.

Key legal issues

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01

Whether the Respondent proved valid reasons for the summary dismissal

Holding

The Respondent failed to prove the reasons for dismissal; the dismissal was therefore without valid reason

Reasoning

The Respondent alleged absenteeism, negligence and improper performance, yet produced no attendance register/muster roll, no written warning letters despite its own Handbook (Clause 15) requiring warnings to be kept in the employee's file, and no minutes of meetings. RW1 disclaimed custodianship of the records. Under Section 43 the employer must prove the reasons for termination, failing which the termination is deemed unfair. The court found no evidence supporting the allegations.

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02

Whether the Claimant was accorded a fair hearing before dismissal

Holding

The Claimant was dismissed without being heard, contrary to Section 41 of the Employment Act

Reasoning

RW1 conceded that the termination letter was already prepared when the Claimant was called for discussions on 11/05/2016. This demonstrated a predetermined decision. Section 41, couched in mandatory terms, requires notice of the allegations and a hearing before termination on grounds of misconduct. No show-cause notice or opportunity to make representations was given. The dismissal was therefore procedurally unfair and was declared unfair and unjustified under Section 45(2).

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03

Whether the Claimant is entitled to the remedies sought

Holding

The Claimant was awarded compensation equivalent to 12 months' gross salary and a certificate of service, plus costs

Reasoning

Having found the dismissal unfair both substantively and procedurally, the court exercised its discretion under Section 49 of the Employment Act to award the maximum compensation of 12 months' gross salary (Kshs. 14,423 x 12 = Kshs. 173,076). The court also directed issuance of a certificate of service as required under Section 51, and awarded costs to the Claimant. The Claimant had been paid some dues upon termination but this did not defeat the award.

p. 4

Legal principles established

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  • The burden lies on the employer to prove the reasons for termination; failure to do so renders the termination unfair under Section 43
  • An employee must be given an opportunity to be heard before dismissal; where the dismissal letter is already prepared before the meeting, the decision was made without a hearing

Court orders

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  1. 1.A declaration that the summary dismissal of the Claimant was unfair and unjustified as per Section 45(2) of the Employment Act
  2. 2.Compensation equivalent to 12 months' salary (12 x Kshs. 14,423 = Kshs. 173,076/=) for unlawful and unfair dismissal
  3. 3.An order that the Claimant be issued with a certificate of service
  4. 4.The Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 41(2)
  • Employment ActSection 43
  • Employment ActSection 44(4)(a)
  • Employment ActSection 45(2)
  • Employment ActSection 47(5)
  • Employment ActSection 49
  • Employment ActSection 51
  • Employment ActSection 74(1)

Cases cited (5)

  • Samuel Uche Ajaegbu -v- Eagle Vet Kenya Limited
    [2018] eKLR
  • Shanker Sanklani v DHL Global Forwarding (K) Limited
    [2012] eKLR
  • Rebecca Ann Maina & 2 Others v Jomo Kenyatta University of Agriculture & Technology
    [2014] eKLR
  • Mary Chemweno Kiptui -v- Kenya Pipeline Company Limited
    [2014] eKLR
  • Banking Insurance & Finance Union (Kenya) -v- Barclays Bank of Kenya Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim under Sections 41, 43, 45 and 49)

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, "Alexina Mukasiali Mutsami v The Institute of the Daughters of Mary Help of Christians (Salesian Sisters of St. John Boasco) Maria Romero Children’s Home [2019] KEELRC 768 (KLR)", Case Analysis (2019). Cause No. 1208 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/768/eng@2019-09-17

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