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Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment as provided

Eliud Wachira v General Motors (EA) Ltd [2019] KEELRC 1897 (KLR)

Employment and Labour Relations Court
29 March 2019
3,566 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer must prove both a fair reason and a fair hearing before firing an employee, or pay compensation.

What this practically means

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Executive summary

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The Claimant, employed as an assembler of motor vehicles from 9th July 2007, was summarily terminated on 8th October 2012 for gross negligence due to failure to follow the material handling procedure for CKD forward robbing and record keeping resulting in unexplained loss of spare parts. He sued for a declaration of wrongful termination, terminal benefits, service pay, damages of up to 12 months' salary, a certificate of service, and alternatively reinstatement. The respondent maintained the dismissal was lawful. The court framed two issues: whether the termination was unfair and whether the reliefs were payable. On the reason for termination, the court found contradictions between the defence witnesses on the timing of the investigations report, found the respondent failed to prove the claimant was trained on or knew of the requirement to fill the PMRR form, and noted the claimant alone was singled out among employees who forward robbed negligently without proof of what items were lost through his personal negligence. On procedure, no documentary evidence such as invitation letters or minutes proved any hearing, and the burden under section 41 lay on the employer. The termination was declared unfair and wrongful. The court awarded 8 months' salary compensation of Kshs.303,656 under section 49(1) and a certificate of service under section 51. Service pay was refused because the claimant was a member of the respondent's pension scheme under section 35(6). Reinstatement was not granted. Judgment was entered for Kshs.303,656 plus costs and interest at court rates, subject to statutory deductions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant was unfairly terminated
  2. 2.Whether the Claimant is entitled to the reliefs sought

Key legal issues

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01

Whether the respondent proved a valid and fair reason for the dismissal

Holding

The respondent failed to prove that the claimant knowingly breached the forward robbing procedure or that the lost items were attributable to his personal negligence

Reasoning

The termination letter cited gross negligence over forward robbing and record keeping. The court found contradictions between Rw1 and Rw2 on the investigation report's timing, noted the respondent failed to prove the claimant was trained on or knew of the PMRR form requirement, and that the claimant alone was singled out among employees who forward robbed negligently without proof of what items were lost due to him personally.

p. 4
02

Whether a fair procedure under section 41 of the Employment Act was followed

Holding

The respondent failed to discharge its burden of proving the claimant was accorded a hearing; the termination was procedurally unfair

Reasoning

Although the defence witnesses asserted the claimant was given numerous opportunities to explain, no documentary evidence such as invitation letters or minutes of any meeting or hearing was produced. The termination letter made no reference to any meeting or hearing. The burden of proving a fair hearing under section 41 lay with the employer and was not discharged.

p. 4
03

Entitlement to reliefs

Holding

Declaration of unfair termination granted; 8 months' salary compensation and a certificate of service awarded; service pay refused on account of pension membership

Reasoning

Having found the termination unfair and wrongful, the court awarded compensation equivalent to 8 months' salary (Kshs.303,656), considering the claimant's almost 5 years of unblemished service with no warning letters. A certificate of service was mandatory under section 51. Service pay was barred because the claimant was a member of the respondent's pension scheme and had collected his pension.

p. 5

Legal principles established

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  • Termination is unfair if the employer fails to prove both a valid and fair reason and a fair procedure
  • The burden of proving that the employee was heard before termination lies with the employer
  • An employee who is a member of a registered pension scheme is not entitled to service pay

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unfair and wrongful
  2. 2.Compensation of 8 months' salary under section 49(1) of the Employment Act, being Kshs.303,656
  3. 3.Issuance of a Certificate of Service to the Claimant under section 51 of the Employment Act
  4. 4.Costs of the suit to the Claimant, with interest at court rates from the date of judgment
  5. 5.The award to be paid subject to statutory deductions

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (not expressly cited in the judgment)

Relief refused

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Service pay of Kshs.183,998.85

The Claimant was a member of the respondent's pension scheme and collected his pension, disqualifying him from service pay

p. 5

Reinstatement (alternative relief)

Not granted; the court awarded compensation instead and made no order for reinstatement

Damages equivalent to 12 months' salary (Kshs.457,130.00)

The court awarded 8 months' salary compensation instead

p. 5

Terminal benefits

No terminal benefits were found owing; the claimant had already received pension and part payment

Costs

Judgment for the Claimant in the sum of Kshs.303,656 plus costs and interest at court rates from the date of judgment

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In view of the fact that the respondent has failed to prove, a valid and fair reason for discharging the claimant, and that a fair procedure was followed, I return that the termination was unfair and wrongful within the meaning of section 45 of the Employment Act.
p. 4Unfair and wrongful termination under section 45
The burden of proving that the claimant was heard before the separation as required by section 41 of Employment Act lies with the respondent. The said burden was not discharged and the termination became unfair.
p. 4Employer's burden of proving procedural fairness
Picking on the claimant alone meant that the lost material was due to his personal negligence, which was not prove. Consequently, I return that the respondent has failed to prove and justify the reason for dismissing the claimant.
p. 4Failure to justify reason for dismissal
I therefore enter judgment for him in the sum of Kshs.303,656 plus costs and interest at court rates from the date hereof. The claimant will also be issued with a certificate of service under section 51 of the Employment Act. The award herein will be paid subject to statutory deductions.
p. 5Final orders and disposition

Issues in the judgment

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minor

Contradiction between defence witnesses on the timing of the investigations report relative to the suspension

minor

Internal typographical error in the judgment: 'which was not prove' instead of 'proved'

minor

Inconsistent reference to the service pay provision as 'Section 35 1(6)' of the Employment Act

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, "Eliud Wachira v General Motors (EA) Ltd [2019] KEELRC 1897 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1897/eng@2019-03-29

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