Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Cause (Memorandum of Claim dated 28th November 2014)· [2019] KEELRC 1496 (KLR)

Dismas Amboko Lukanza v General Freighters Limited [2019] KEELRC 1496 (KLR)

Employment and Labour Relations Court
31 May 2019
MOMAUREEN ONYANGO
1,462 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled a dismissal unfair because the employer never gave the worker a chance to be heard, awarding 10 months' salary as compensation.

What this practically means

#

Executive summary

#
The Claimant, Dismas Amboko Lukanza, sued General Freighters Limited for wrongful and unfair termination of his employment. He was employed on 1st February 2002 as a Loader and later Operation Porter, and was summarily dismissed on 15th January 2014 on allegations of insubordination and gross misconduct, namely altering or recording wrong timings on the attendance sheet and, historically, retaining a union dues cheque without authority. He sought a declaration that the dismissal was oppressive, arbitrary and unlawful, Kshs.141,372 being twelve months' basic salary, and alternatively general damages, later expanding his claims in submissions to Kshs.287,744.50 covering notice pay, accrued leave, leave travelling allowance, severance pay and a certificate of service. The Respondent admitted the employment and dismissal, contending the dismissal was justified by gross misconduct and that it had issued warnings over prior incidents. The court framed two issues: whether the termination was wrongful, unfair and unlawful, and whether the Claimant was entitled to the reliefs sought. Applying Section 47(5) of the Employment Act on burden of proof and Section 41 on procedure, the court found no disciplinary meeting was convened and no investigation report was produced, so the Respondent failed to comply with Section 41, rendering the termination unfair and illegal. Relying on Donald Odeke v Fidelity Security Ltd, it held that an employee not heard is ipso facto unfairly terminated. The court awarded 10 months' salary as compensation (Kshs.117,810.00), Kshs.5,891.00 for 15 days worked in January 2014, and a certificate of service, totalling Kshs.123,701.00. Notice pay, leave and severance claims were refused as unpleaded. The judgment was delivered at Nairobi on 31st May 2019 by Maureen Onyango J.

Key legal issues

#
01

Whether the summary dismissal was procedurally fair under Sections 41, 43, 44 and 45 of the Employment Act

Holding

The termination was unfair and illegal because the Respondent did not convene a disciplinary meeting or produce an investigation report.

Reasoning

Section 44 permits summary dismissal for gross misconduct, but Section 41 mandates a procedure before dismissal. The court found no disciplinary meeting was convened for the Claimant to defend himself and no investigation report was produced. Following Donald Odeke v Fidelity Security Ltd, an employee not heard is ipso facto unfairly terminated regardless of the offence charged.

p. 2
02

What remedies flow from the unfair termination

Holding

Compensation of 10 months' salary, payment for 15 days worked in January 2014, and a certificate of service; notice pay and leave claims refused as unpleaded.

Reasoning

Given the unfair termination and the Claimant's over 12 years of service, the court awarded the equivalent of 10 months' salary as compensation. The admitted sum for days worked in January 2014 was awarded, but heads introduced only in submissions (notice pay, leave, severance) could not be granted because they were not pleaded in the claim.

p. 3

Legal principles established

#
  • An employer must comply with the procedure under Section 41 of the Employment Act before summary dismissal; failure to give the employee an opportunity to be heard renders termination unfair and illegal.
  • The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer.

Court orders

#
  1. 1.Payment of Kshs.5,891.00 for the 15 days worked in January 2014
  2. 2.Payment of 10 months' salary as compensation for unfair termination (11,781 x 10) = Kshs.117,810.00
  3. 3.Issuance of a Certificate of Service
  4. 4.Total award of Kshs.123,701.00

Authorities

#

Legislation

  • Constitution of KenyaArticle 41(1)(2)(a),(b),(c)
  • Employment ActSections 41, 41(1), 43(1) and (2), 44, 44(4), 45, 47(5), 49(c)
  • Labour Relations ActSection 55

Cases cited (3)

  • Swinstone Okumu Wasike & Another –v- General Motors East Africa Ltd
    Nairobi ELRC Case No. 294 of 2014
  • Naftali Ayot Okanja –v- Rai Plywoods Kenya Limited
    ELRC Case No. 111 of 2018 Kericho [2017] eKLR
  • Donald Odeke –v- Fidelity Security Ltd
    Cause No. 1998 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act and Articles 41(1)(2)(a),(b),(c) of the Constitution (as invoked by the Claimant)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Dismas Amboko Lukanza v General Freighters Limited [2019] KEELRC 1496 (KLR)", Case Analysis (2019). ELRC Cause (Memorandum of Claim dated 28th November 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1496/eng@2019-05-31

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