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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 1056 (KLR)

Edward Muriungi Mputhia v Chemigas Limited [2019] KEELRC 1056 (KLR)

Employment and Labour Relations Court
18 July 2019
NMNzioki wa Makau
1,693 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employer lost an unfair dismissal case because it never gave the employee a hearing before firing him, even though the misconduct itself could have justified dismissal.

What this practically means

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Executive summary

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The Claimant sued his erstwhile employer, alleging that he was employed in 2006 and summarily dismissed on 11 March 2017 without notice or cause, without payment for days worked in March 2017, and without leave or service pay. He sought a total of Kshs. 689,263.60 plus general and punitive damages. The Respondent defended the claim on the basis that the dismissal followed prior warnings and acts of gross misconduct, including driving a company vehicle without authority, that all lawful dues were paid, and it also raised a venue objection. The Claimant testified; the Respondent's witness did not appear despite two adjournments. The court held that under Sections 43 and 74 of the Employment Act the burden lay on the employer to justify the dismissal and keep employment records. While noting the payslip described the Claimant as an administrator and that dismissal for driving without authority could have been justified, the court found the Respondent failed to comply with the mandatory hearing requirement of Section 41, rendering the dismissal procedurally unfair and contrary to natural justice. The court allowed the claim in part, awarding one month's salary in lieu of notice (Kshs. 27,172.02), six months' salary as compensation (Kshs. 163,033.20), and costs of the suit. The remaining heads of claim were not granted.

Key legal issues

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01

Procedural fairness in summary dismissal

Holding

The dismissal was unfair because the Claimant was not accorded a hearing before dismissal, in breach of Section 41 of the Employment Act

Reasoning

The court accepted that the Claimant could lawfully have been dismissed for driving a company vehicle without authority, but the Respondent failed to follow the mandatory procedure in Section 41. The dismissal was abrupt and contrary to natural justice. The Respondent's witness did not testify despite being given two opportunities, leaving the allegation of warnings and due process uncontroverted by evidence.

p. 2
02

Burden of proof on the employer

Holding

The burden lay on the Respondent to justify the dismissal with a valid and fair reason and to produce employment records

Reasoning

Relying on Sections 43 and 74 of the Employment Act, the court held the employer had to avail documents relating to the employment and demonstrate valid reason. The Claimant's payslip showed he was an administrator rather than a driver's assistant, lending some credence to the Respondent's position, but this did not excuse the failure to follow fair procedure.

p. 2

Legal principles established

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  • Before dismissing an employee for misconduct, an employer must adhere to Section 41 of the Employment Act guaranteeing the employee a hearing
  • The employer bears the burden under Section 43 of the Employment Act to show that a dismissal was for a valid and fair reason
  • The employer is required to keep employment records under Section 74 of the Employment Act

Court orders

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  1. 1.One month's salary in lieu of notice – Kshs. 27,172.02
  2. 2.6 months' salary as compensation for unfair termination – Kshs. 163,033.20
  3. 3.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 36
  • Employment ActSection 74

Cases cited (4)

  • David Kipkosgei Muttai v Green Palms Academy
    [2014] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Meru North Farmers Sacco Limited
    [2014] eKLR
  • Hassanath Wanjiku v Vanela House of Coffees
    [2018] eKLR
  • Mary Mutanu Mwendwa v Ayuda Ninos De Africa-Kenya ANIDAN
    [2013] eKLR
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over employment disputes; the Respondent raised a venue objection (that the suit ought to have been filed in Nairobi) which the court did not uphold

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, "Edward Muriungi Mputhia v Chemigas Limited [2019] KEELRC 1056 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1056/eng@2019-07-18

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