Samwel Kipngetich Rotich v Four Wheel Drive Maintenance (Cause 119 of 2014) (Employment and Labour) [2019] KEELRC 2368 (KLR)
The bottom line
#A Kenyan court ruled that firing a night watchman without a disciplinary hearing was unfair, awarding him over Kshs. 203,000 despite theft on his watch.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of summary dismissal
The termination was procedurally unfair because the claimant was never accorded a disciplinary hearing before summary dismissal
Section 41 of the Employment Act requires the employer, before terminating on grounds of misconduct, to explain the reasons to the employee and to hear and consider any representations. Although items were stolen at the respondent's premises, RW1 never invited the claimant to a disciplinary hearing prior to the summary dismissal, so the dismissal breached section 41 read with section 45(2).
Burden of proof of employment terms and salary
The employer failed to prove the claimant's date of employment and salary under section 10(7) of the Employment Act
The respondent denied issuing the employment letter and alleged employment from 2009 at Kshs.6,300–6,500 per month, but produced no written contract. Section 10(7) places the burden of proving employment terms on the employer absent a written contract, which the respondent failed to discharge. However, the claimant was untruthful about his own employment date, so the court accepted the respondent's stated date of 1st October 2009.
Entitlement to notice pay, service pay and underpayments
Notice pay of one month's salary, service pay for 3 years (no NSSF contributions made) and underpayments computed against General Order rates were awarded
Having found unfair termination, the court awarded one month's salary in lieu of notice. Service pay was awarded because RW1 admitted never making NSSF contributions. Underpayments were computed from the wage increases effective 1st May of each year from 2010 to termination in June 2013.
Legal principles established
#- An employer must subject an employee accused of gross misconduct to a disciplinary hearing before termination; failure to do so renders the termination procedurally unfair under sections 41 and 45(2) of the Employment Act
- Under section 10(7) of the Employment Act, the employer bears the burden of proving terms of employment where no written contract is produced
Court orders
#- 1.Judgment entered for the claimant against the respondent in the total sum of Kshs.203,787.40
- 2.Notice pay of Kshs.10,912 awarded
- 3.Service pay for 3 years of Kshs.16,368 awarded
- 4.Underpayments totalling Kshs.176,507.40 awarded
- 5.The respondent to pay costs of the claim to the claimant
- 6.The respondent to issue the claimant with a certificate of service
- 7.The counterclaim dismissed
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (court not expressly stated in the judgment text)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samwel Kipngetich Rotich v Four Wheel Drive Maintenance (Cause 119 of 2014) (Employment and Labour) [2019] KEELRC 2368 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2368/eng@2019-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.