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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 1454 (KLR)

Kennedy Moss Cheptum v Geothermal Development Company [2019] KEELRC 1454 (KLR)

Employment and Labour Relations Court
31 May 2019
1,802 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 with a valid reason to fire an employee still lost the case because it skipped the mandatory hearing before dismissal.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as an Environmental Scientist from 28th September 2009 until his summary dismissal effective 22nd January 2014, sued for damages for unfair termination and terminal benefits, including pay in lieu of leave and notice, service pay, a declaration of unfair termination, reinstatement, maximum compensation of twelve months' salary, interest, a certificate of service and costs. The Respondent maintained that the Claimant repeatedly absconded duty and abdicated his roles, was warned and given show cause opportunities, and was summarily dismissed for gross misconduct under section 44 of the Employment Act, all dues having been paid. The court framed two issues: whether the summary dismissal was fair, and whether the Claimant was entitled to the prayers sought. It found on the evidence, including biometric attendance records and the Claimant's apology letter, that the Respondent had sufficient reason to dismiss for absenteeism. However, applying Mary Chemweno Kiptui v Kenya Pipeline Company Limited and section 41 of the Employment Act, the court held that the Claimant was still entitled to an actual hearing before termination, which he was not accorded; the termination was therefore unfair for want of a hearing. The court awarded one month's salary in lieu of notice (Kshs.159,260.00), pay in lieu of 80 days' leave (Kshs.272,978.60) - the employer having failed to produce leave records - and four months' salary as compensation (Kshs.637,040.00), totalling Kshs.1,069,278.60. The claim for service pay failed as the Claimant was an NSSF member with contributions duly remitted. The Respondent was ordered to pay the Claimant's costs of the suit.

Key legal issues

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01

Whether the summary dismissal was substantively fair

Holding

The Respondent proved a valid reason for dismissal - the Claimant's persistent unexplained absenteeism.

Reasoning

The dismissal letter cited prior show cause letters and a supervisor's report of absence from 30th December 2013 to 2nd January 2014 without explanation. Biometric clocking-in records attached to the Respondent's pleadings showed attendance lapses which were not rebutted, and the Claimant's own apology letter of 13th September 2013 corroborated prior absenteeism. The court thus found sufficient reason for summary dismissal under section 44(4)(a) and (g) of the Employment Act.

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02

Whether the summary dismissal was procedurally fair

Holding

The dismissal was procedurally unfair because the Claimant was not accorded a hearing before termination.

Reasoning

Section 41 of the Employment Act obliges an employer, before terminating or summarily dismissing an employee on grounds of misconduct, to explain the reasons and hear the employee's representations, including those of a chosen companion. Relying on Mary Chemweno Kiptui v Kenya Pipeline Company Limited, the court held that even employees liable to summary dismissal under section 44 are entitled to a hearing under section 41. No hearing was given, rendering the termination unfair despite the valid reason.

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03

Entitlement to pay in lieu of notice, leave pay and service pay

Holding

The Claimant was awarded one month's notice pay and 80 days' leave pay; service pay was refused.

Reasoning

Having found the termination unfair for want of a hearing, the court awarded one month's gross salary in lieu of notice based on the January 2014 payslip. On leave, the court held that the employer bears the burden of keeping and producing leave records; failing to produce them or a policy on forfeiture of leave, the claim succeeded. Service pay failed because the Claimant was an NSSF member whose contributions were duly remitted under section 35(5).

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Legal principles established

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  • An employer must prove both the reason for termination and that a fair procedure, including a hearing, was followed; termination without a hearing is unfair even where a valid reason exists.

Court orders

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  1. 1.One month's gross salary in lieu of notice of Kshs.159,260.00
  2. 2.Pay in lieu of 80 days' leave (based on basic pay) of Kshs.272,978.60
  3. 3.Four (4) months' gross salary as compensation of Kshs.637,040.00
  4. 4.Total award of Kshs.1,069,278.60
  5. 5.The respondent shall pay the claimant's costs of the suit
Jurisdiction invoked
Employment Act, 2007 (claims arising out of termination of a contract of employment)

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, "Kennedy Moss Cheptum v Geothermal Development Company [2019] KEELRC 1454 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1454/eng@2019-05-31

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