Douglas Maina Kamau v Kibirigwi Farmers Co-Operative Society Limited [2019] KEELRC 1130 (KLR)
The bottom line
#A Kenyan court ruled a watchman's dismissal without a hearing was unlawful, but rejected his extra pay claims for lack of proof.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of summary dismissal following criminal prosecution and acquittal
The dismissal was unlawful because the employer did not adhere to the legal requirements for summary dismissal; the Claimant is entitled to recover for unlawful dismissal
The court accepted that Section 44 permits summary dismissal for gross misconduct, but held the employer must follow the dictates of the law when exercising that right. The Claimant, dismissed the day after the theft without a hearing and later acquitted by the criminal court, was entitled to recover for the unlawful dismissal. The court invoked Section 90 of the Employment Act on timing of claims in rejecting the stale claims.
Proof of overtime, leave, gratuity and rest day claims
Claims failed for want of proof and for being raised too late
The court found the Claimant did not discharge his burden of proving the overtime, leave, gratuity and rest day claims, and observed that such claims ought to have been raised during the pendency of the employment, invoking Section 90 of the Employment Act on the limitation of such claims.
Special damages for legal expenses
Not proved, therefore not awarded
Special damages must be specifically pleaded and proved. The Claimant asserted legal expenses of Kshs. 150,000/- incurred in his criminal defence, but the court found he failed to prove these, and the Respondent had also submitted that no evidence of payment was presented.
Legal principles established
#- An employer may summarily dismiss under Section 44 of the Employment Act but must adhere to the dictates of the law in doing so; failure renders the dismissal unlawful and compensable
- Claims for overtime, leave, gratuity and rest days not raised during the pendency of employment and not proved will fail
- Special damages must be proved
Court orders
#- 1.One month's salary in lieu of notice – Kshs. 6,969/-
- 2.Six months' salary for the unlawful dismissal – Kshs. 41,814/-
- 3.Certificate of service
- 4.Costs of the suit
- Jurisdiction invoked
- Original employment and labour relations jurisdiction (Employment Act; the judgment does not state the specific constitutional provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Douglas Maina Kamau v Kibirigwi Farmers Co-Operative Society Limited [2019] KEELRC 1130 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1130/eng@2019-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.