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ELRCPartially AllowedCause No. 1601 of 2012 (Claim dated 20th April 2012, amended 6th October 2012)· [2019] KEELRC 1375 (KLR)

Joyce Ngina Simitu v Stephen O. Mallowah & 2 others [2019] KEELRC 1375 (KLR)

Employment and Labour Relations Court
14 June 2019
MOMAUREEN ONYANGO
2,311 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 ruled that firing an employee without hearing her side first is unfair, no matter the accusation.

What this practically means

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Executive summary

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The Claimant, a Human Resource Administration Officer at the Anti-Counterfeit Agency, sued the Agency and its Executive and Deputy Directors after disciplinary proceedings arising from her absence from duty on 4th and 5th April 2012, when she attended a staff funeral and fell ill, visiting her doctor who placed her off duty. She sought reinstatement without loss of benefits, payment of salary for the suspension/termination period, an order restraining harassment, and costs. She was first terminated on 17th May 2012 and later summarily dismissed on 20th September 2012 for absenteeism, lateness and alleged falsification of her KCSE results. The Respondents maintained that they followed the Code of Conduct procedure and that the Claimant bypassed internal mechanisms. The court heard evidence, including the funeral attendee list and sick-off sheet produced by the Claimant, and found that the Respondent produced no evidence of the falsification allegation. Relying on Sections 41, 43 and 45 of the Employment Act, the court held the termination was without valid reasons and procedurally unfair, applying the principle from Donald Odeke v Fidelity Security Ltd that an unheard employee's termination is ipso facto unfair. Reinstatement was declined for want of exceptional circumstances and the strained relationship; it was substituted with compensation of three months' gross salary. The Respondent was ordered to pay the Claimant's costs. Additional remedies raised only in submissions were not granted.

Key legal issues

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01

Whether the dismissal was for valid reasons and with fair procedure

Holding

The termination was without valid reasons and not in accordance with fair procedure, hence unfair under Sections 43 and 45(2) of the Employment Act

Reasoning

Under Section 47(5), the employee bears the burden of proving unfair dismissal while the employer must justify the grounds for termination. The Claimant furnished documents justifying her absence, while the Respondent produced no evidence of the falsification allegation. The Respondent also failed to follow the procedure in Section 41 by not calling the Claimant for another disciplinary hearing before the final dismissal, even though she did not respond to the show cause letter.

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02

Whether reinstatement was an appropriate remedy

Holding

Reinstatement refused and substituted with compensation

Reasoning

Section 49(4)(d) allows specific performance of a contract of service only in exceptional cases. The Claimant did not demonstrate exceptional circumstances; the relationship was strained, making it difficult for her to work with the Respondent. The court therefore substituted the prayer for reinstatement with compensation of 3 months' gross salary, taking into account all circumstances including her failure to respond to the show cause letter.

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03

Whether the court could grant reliefs raised for the first time in submissions

Holding

The court restricted itself to the prayers in the Claim; additional prayers in submissions (declaration, 12 months' compensation, damages) were not granted as pleaded reliefs

Reasoning

The Respondents argued, relying on Patrick Wabwile Pamba and Daniel Otieno Migore, that parties are bound by their pleadings and evidence must be in consonance with them. The Claimant introduced in submissions fresh prayers including a declaration and damages. The court's determination addressed only the reliefs in the Claim, effectively declining the additional prayers raised in submissions.

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Legal principles established

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  • Failure to hear an employee before termination renders the termination unfair regardless of the offence charged
  • An employer alleging falsification of documents bears the burden of proving it
  • Reinstatement is not available except in exceptional cases under Section 49(4)(d) of the Employment Act

Court orders

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  1. 1.Prayer for reinstatement substituted with compensation of 3 months' gross salary payable by the Respondent
  2. 2.Respondent to pay the Claimant's costs

Authorities

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Legislation

  • Employment ActSections 41, 42, 43, 44, 44(4)(c), 45, 45(2), 45(4), 47(5), 49, 49(4)(d)
  • Evidence Actgeneral provisions on burden of proof
  • Code of Conduct Manual 2012Chapters 2.10, 2.11, 3.16

Cases cited (5)

  • Pamela K. Butalanyi –v- The University Council for and on behalf of Kenya Polytechnic University College
    Cause No. 1601 of 2011
  • Pamela Nelima Lutta –v- Mumias Sugar Co. Ltd
    Cause 293/2015
  • Patrick Wabwile Pamba & 7 others –v- Equity Bank Limited & 5 others
    [2017] eKLR
  • Daniel Otieno Migore –v- South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • Donald Odeke –v- Fidelity Security Ltd
    Cause No. 1998 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 42, 43, 44, 45 and 49 invoked)

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, "Joyce Ngina Simitu v Stephen O. Mallowah & 2 others [2019] KEELRC 1375 (KLR)", Case Analysis (2019). Cause No. 1601 of 2012 (Claim dated 20th April 2012, amended 6th October 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1375/eng@2019-06-14

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