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ELRCPartially AllowedCause No. 320 of 2015· [2019] KEELRC 2138 (KLR)

Paschal Khatono Mafwiri v Bob Morgan Services Limited [2019] KEELRC 2138 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
1 March 2019
878 words in judgment
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The bottom line

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A Kenyan court ruled an employer unfairly sacked a 16-year employee and must pay him eight months' wages because it proved no valid reason and skipped proper procedure.

What this practically means

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Executive summary

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Paschal Khatono Mafwiri (Claimant), acting in person and later represented by Khalwale & Co. Advocates, sued Bob Morgan Services Limited (Respondent) for unfair termination of employment and unpaid terminal benefits arising from the termination of his employment in November 2013. The Respondent contended that the termination was lawful and occasioned by gross misconduct, namely inciting employees to reject a restructuring exercise. The court condensed the issues into procedural fairness, substantive fairness, and the specific monetary heads of claim. On procedural fairness, the court held under sections 35(1)(c) and 41 of the Employment Act, 2007 that the Claimant was not issued a written notice of termination or show cause notice, and since no minutes of the meeting at the head office were produced, the court could not confirm that a disciplinary hearing took place. On substantive fairness, the Respondent, citing incitement of staff, disclosed no details of the staff allegedly incited and called none of them to testify, so it failed to prove valid and fair reasons under sections 43 and 45. On the monetary heads, the court found the Claimant had been paid accrued leave, pay in lieu of notice, house allowance, earned wages, and uniform refund, and declined those claims. Considering the Claimant's approximately 16 years of service, the court awarded compensation equivalent to 8 months gross wages (Kshs 160,936/-, based on October 2013 gross wage of Kshs 20,117/-), declared the termination unfair, ordered issuance of a certificate of service within 15 days, and awarded costs to the Claimant.

Key legal issues

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01

Procedural fairness of the termination

Holding

The termination was procedurally unfair because the Claimant was not issued with a written notice of termination or show cause notice, and the court could not confirm that the meeting held amounted to a disciplinary hearing.

Reasoning

Section 35(1)(c) of the Employment Act requires written notice of termination at least 28 days in advance unless the case is gross misconduct under section 44. Section 41 prescribes a hearing. The Claimant admitted receiving a dispatch summoning him to head office where he met shop stewards and managers, but the Respondent produced no minutes of that meeting, so the court could not confirm it was a disciplinary hearing. The Respondent's witness admitted this was not summary dismissal but normal termination, yet no written notice issued.

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02

Substantive fairness of the termination

Holding

The Respondent did not have valid and fair reasons to terminate the Claimant's services.

Reasoning

Under sections 43 and 45 of the Employment Act, an employer must prove the reasons for termination and that they are valid and fair. The reason given was incitement of staff to reject a restructuring exercise, but no details of the staff allegedly incited were disclosed and none of them were called to testify. Without such evidence, the Respondent failed to discharge the burden of proving valid and fair reasons for the termination.

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03

Compensation for unfair termination

Holding

The equivalent of 8 months gross wages was awarded as fair compensation, considering the length of service.

Reasoning

In exercising discretion on compensation, the court considered that the Claimant had served the Respondent for about 16 years. Taking the gross wage for October 2013 of Kshs 20,117/-, the court concluded that the equivalent of 8 months gross wages would be fair compensation, quantified at Kshs 160,936/-.

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Legal principles established

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  • An employer must issue a written notice of termination or show cause notice at least 28 days in advance unless the case is gross misconduct, and afford the employee a hearing, per sections 35(1)(c) and 41 of the Employment Act
  • The employer bears the burden of proving the reasons for termination and that they are valid and fair
  • Failure to produce minutes of a purported disciplinary meeting prevents the court from confirming that a disciplinary hearing took place
  • A certificate of service is a statutory right of an employee

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unfair
  2. 2.Award of compensation of Kshs 160,936/- (equivalent of 8 months gross wages)
  3. 3.Respondent to issue certificate of service to the Claimant within 15 days
  4. 4.Claimant to have costs of the Cause

Authorities

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Legislation

  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 44
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution (Cause filed in the Employment and Labour Relations Court)

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, "Paschal Khatono Mafwiri v Bob Morgan Services Limited [2019] KEELRC 2138 (KLR)", Case Analysis (2019). Cause No. 320 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2138/eng@2019-03-01

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