Nancy Muthoga v Chandarana Supermarkets [2019] KEELRC 2280 (KLR)
The bottom line
#A Kenyan employer who dismisses an employee for absconding without first holding a disciplinary hearing loses, even where the employee also failed to report illness.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of text messages
Text messages inadmissible for failure to satisfy Section 106B(2) and (4) of the Evidence Act
The authenticity of the text messages could not be ascertained as it was unclear which numbers belonged to the sender and recipient. Printed text messages emanate from an electronic device and must comply with Sections 106B(1) and (2) of the Evidence Act, including a certificate signed by a person in a responsible position. The Claimant failed to meet these conditions, so the messages were excluded.
Whether dismissal for absence due to illness was wrongful/unfair
Termination procedurally unfair despite employee's failure to notify, because no disciplinary hearing was held
The employee failed to notify the employer of her illness or deliver sick sheets as required by Section 30(1) of the Employment Act and Clause 7(b) of her contract. However, the Respondent never invited her to a disciplinary hearing before summary dismissal for absconding duty, and the minutes of the alleged hearing were not produced, rendering the termination unfair for want of fair procedure.
Reliefs
One month notice pay, 5 months' compensation, terminal dues, certificate of service and costs awarded; service pay and January 2013 claim refused
The Respondent did not dispute notice pay of Kshs.70,560. Considering the termination was on medical grounds and length of service, 5 months' salary (Kshs.352,800) was awarded as compensation, plus admitted terminal dues of Kshs.278,399. Service pay failed for lack of proof of non-remittance of NSSF; the claim for 8 days in January 2013 failed as she reported on the day of termination.
Legal principles established
#- An employer must invite an employee to a disciplinary hearing before summary dismissal for absconding duty; failure renders termination procedurally unfair
- An employee claiming sick leave must notify the employer and deliver a medical certificate of incapacity to work
- Electronic evidence such as text messages must satisfy the conditions in Section 106B of the Evidence Act to be admissible
Court orders
#- 1.One month's salary in lieu of notice of Kshs.70,560
- 2.Compensation of 5 months' salary in the sum of Kshs.352,800
- 3.Terminal dues of Kshs.278,399
- 4.Certificate of Service
- 5.Costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Francis Mathina Kyule v Lavington Security Limited [2019] KEELRC 15 (KLR)[2019] KEELRC 15 (KLR)19 Dec 2019
Cite this brief
#Cite this brief
Caselaw, "Nancy Muthoga v Chandarana Supermarkets [2019] KEELRC 2280 (KLR)", Case Analysis (2019). Cause No 2091 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2280/eng@2019-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.