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ELRCPartially AllowedCause dated 29th July 2015 (Memorandum of Claim filed 29th July 2015)· [2019] KEELRC 2381 (KLR)

Alloys Anyega Manyange v Mfi Technology Solutions Limited [2019] KEELRC 2381 (KLR)

Employment and Labour Relations Court
4 February 2019
1,892 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld an employee's dismissal for offensive remarks to a colleague, ruling he forfeited his right to a hearing by walking out of the disciplinary meeting.

What this practically means

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Executive summary

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The Claimant, employed as Key Account Manager-Public Sector from 1st November 2013, was summarily dismissed on 8th July 2015 for gross misconduct arising from an altercation in which he told a colleague, Nelly Njeri, that he could afford a hundred ladies like her. He sought notice pay, salary for 8 days worked in July 2015, leave pay for 2014 and 2015, gratuity, 12 months' compensation and a certificate of service. The Respondent maintained that the dismissal followed a disciplinary meeting which the Claimant walked out of. The Court framed two issues: whether the dismissal was lawful and fair, and whether the remedies were payable. Applying Section 43 of the Employment Act and the range of reasonable responses test endorsed in Reuben Ikatwa, the Court held the Respondent had a valid reason to dismiss, as the admitted words would offend a reasonable lady and had no place in the workplace. On procedure, relying on Feroz Ali Omar and Jackson Butiya, the Court held that the Claimant, by walking out of the disciplinary meeting to seek legal representation, squandered the opportunity to be heard and could not claim a hearing he had thrown away. The dismissal was therefore lawful and fair, defeating the claims for notice pay and compensation. However, in the absence of leave records, the Court awarded 13 days' leave pay for 2014, prorata leave for 2015 and salary for 8 days worked, totalling Kshs. 91,500. Gratuity was refused for want of basis. As the claim succeeded only in part, each party was directed to bear their own costs. Judgment signed by Linnet Ndolo, Judge, on 15th January 2019 and delivered by Maureen Onyango, Judge, in Nairobi on 4th February 2019.

Key legal issues

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01

Whether the employer had a valid reason for summary dismissal

Holding

Uttering the words 'I can afford a hundred ladies like you' to a colleague constituted gross misconduct justifying dismissal

Reasoning

The Claimant admitted uttering the words to Nelly Njeri, who was offended and lodged a written complaint. Applying the range of reasonable responses test, the Court held the words would offend a reasonable lady and that there was no justification for such language at the workplace, so a reasonable employer could dismiss on those facts.

p. 3
02

Whether the Claimant was afforded a fair hearing before dismissal

Holding

The Claimant denied himself a hearing by walking out of the disciplinary meeting to seek legal representation

Reasoning

The Claimant walked out of the meeting convened by the employer because he wanted legal representation and went to the police. Relying on Feroz Ali Omar and Jackson Butiya, the Court held that internal disciplinary proceedings are between employer and employee, that an employee need not be accompanied by an advocate, and that an employee who squanders internal grievance mechanisms cannot claim he was not heard.

p. 3
03

Entitlement to leave pay and salary for days worked

Holding

Claimant awarded 13 days' leave pay for 2014, prorata leave for 2015 and salary for 8 days worked in July 2015

Reasoning

In the absence of leave records from the employer to counter the claim, the Court allowed the claimed 13 days' leave balance for 2014 and prorata leave for 2015, and held the Claimant entitled to salary for 8 days worked in July 2015.

p. 4

Legal principles established

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  • The employer bears the burden of establishing a valid reason for termination that would cause a reasonable employer to dismiss, judged by the range of reasonable responses test
  • An employee who walks out of an employer's internal disciplinary process cannot later claim he was not afforded a hearing

Court orders

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  1. 1.Dismissal of the Claimant held lawful and fair; claim for compensation and one month's salary in lieu of notice dismissed
  2. 2.Judgment entered for the Claimant for Kshs. 91,500 comprising 13 days' leave pay for 2014 (Kshs. 37,762), prorata leave pay for 2015 (Kshs. 30,500) and salary for 8 days worked in July 2015 (Kshs. 23,238)
  3. 3.Claim for gratuity dismissed
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 43(1) and (2)

Cases cited (3)

  • Reuben Ikatwa & 17 others v Commanding Officer British Army Training Unit Kenya & another
    [2017] eKLR
  • Feroz Ali Omar v Ecu Worldwide Limited
    [2018] eKLR
  • Jackson Butiya v Eastern Produce Limited
    Cause No 335 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment claim for unlawful summary dismissal)

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, "Alloys Anyega Manyange v Mfi Technology Solutions Limited [2019] KEELRC 2381 (KLR)", Case Analysis (2019). Cause dated 29th July 2015 (Memorandum of Claim filed 29th July 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2381/eng@2019-02-04

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