Eliud Wachira v General Motors (EA) Ltd [2019] KEELRC 1897 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant was unfairly terminated
- 2.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the respondent proved a valid and fair reason for the dismissal
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
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.
Whether a fair procedure under section 41 of the Employment Act was followed
The respondent failed to discharge its burden of proving the claimant was accorded a hearing; the termination was procedurally unfair
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.
Entitlement to reliefs
Declaration of unfair termination granted; 8 months' salary compensation and a certificate of service awarded; service pay refused on account of pension membership
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.
Legal principles established
#- 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
#- 1.Declaration that the termination of the Claimant's employment was unfair and wrongful
- 2.Compensation of 8 months' salary under section 49(1) of the Employment Act, being Kshs.303,656
- 3.Issuance of a Certificate of Service to the Claimant under section 51 of the Employment Act
- 4.Costs of the suit to the Claimant, with interest at court rates from the date of judgment
- 5.The award to be paid subject to statutory deductions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
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
#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.
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.
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.
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.
Issues in the judgment
#Contradiction between defence witnesses on the timing of the investigations report relative to the suspension
Internal typographical error in the judgment: 'which was not prove' instead of 'proved'
Inconsistent reference to the service pay provision as 'Section 35 1(6)' of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.