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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 789 (KLR)

Fredrick Alekwa Sakwa & 3 others v Mumias Sugar Company Limited [2019] KEELRC 789 (KLR)

Employment and Labour Relations Court
26 September 2019
MNM. N. Nduma
1,453 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court found two sugar company employees were unfairly dismissed and awarded them a year's salary total, but refused reinstatement.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Bungoma, presided over by Hon. M. N. Nduma, Judge, delivered judgment on 26 September 2019 in an unfair termination suit by former employees of West Kenya Sugar Co. The 1st and 4th Claimants' suits had been withdrawn by consent on 29 May 2019, leaving the 2nd and 3rd Claimants, both summarily dismissed on 26 April 2016 after disciplinary proceedings arising from allegations of fraudulently requisitioning a survey and preparing a contract addendum. They sought reinstatement without loss of wages and benefits and costs. Both Claimants testified; the Respondent called no witness at the defence hearing and its case was deemed closed. The court framed two issues: whether the dismissals were for valid reason and effected through fair procedure, and whether the Claimants were entitled to reinstatement. It found the Claimants' uncontroverted testimony showed they acted under their superiors' instructions and that the Respondent failed to satisfy Section 43 of the Employment Act by proving a valid reason. The Claimants discharged their burden under Section 47(5), and the dismissals violated sections 36, 41, 43 and 45 of the Act. On remedy, the court declined reinstatement: three years had elapsed, both Claimants had mitigated their loss through alternative employment, and the Respondent was on the verge of financial collapse. It awarded each Claimant two months' salary in lieu of notice (Kshs 311,466 and Kshs 192,682 respectively) and ten months' salary as compensation (Kshs 1,557,380 and Kshs 963,411), with interest at court rates from the date of judgment and costs of the suit. The suit succeeded on liability but the principal relief sought, reinstatement, was refused.

Key legal issues

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01

Whether the summary dismissals were for valid reason and effected through fair procedure

Holding

The dismissals were wrongful and unfair, in violation of sections 36, 41, 43 and 45 of the Employment Act; the Claimants did their work under supervision of their superiors and the Respondent adduced no evidence in rebuttal.

Reasoning

The Claimants' testimony was uncontroverted because the Respondent failed to call any witness at the defence hearing. They explained the circumstances of the contract addendum and the re-survey, and the affected farmer testified the survey was done regularly. The Respondent therefore failed to prove a valid reason under Section 43, and the Claimants discharged their burden under Section 47(5).

p. 2
02

Whether reinstatement was the appropriate remedy

Holding

Reinstatement was refused; compensation of ten months' salary plus two months' pay in lieu of notice was awarded instead.

Reasoning

Three years had passed since the dismissal; both Claimants had served ten years with promotions and built careers in the sugar industry. Both had mitigated their loss through alternative employment, though not equivalent in the case of CW2. The Respondent was reportedly in financial difficulty and on the verge of collapse, making reinstatement impracticable.

p. 2

Legal principles established

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  • An employer bears the burden under Section 43 of the Employment Act of proving a valid reason for summary dismissal, failing which the dismissal is wrongful.
  • An employee who demonstrates that a dismissal was wrongful discharges the onus under Section 47(5) of the Employment Act, shifting the burden to the employer to justify the termination.
  • Reinstatement is not an automatic remedy even where dismissal is unfair; the court considers elapsed time, mitigation and the employer's financial position.

Court orders

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  1. 1.Two (2) months salary in lieu of notice: Kshs 311,466 to the 2nd Claimant and Kshs 192,682 to the 3rd Claimant
  2. 2.Equivalent of ten (10) months salary as compensation: Kshs 1,557,380 for the 2nd Claimant and Kshs 963,411 for the 3rd Claimant
  3. 3.Interest at court rates from the date of judgment till payment in full
  4. 4.Costs of the suit

Authorities

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Legislation

  • Employment ActSection 44(4)
  • Employment ActSection 43
  • Employment ActSection 47(5)
  • Employment ActSections 36, 41, 43 and 45
  • Employment ActSections 49(1)(2)(3) and 4
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 36, 41, 43, 45, 47(5) and 49 applied)

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, "Fredrick Alekwa Sakwa & 3 others v Mumias Sugar Company Limited [2019] KEELRC 789 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/789/eng@2019-09-26

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