Robert Mwaniki Ndaru & another v Kenya Breweries Limited [2019] KEELRC 2502 (KLR)
The bottom line
#A Kenyan court awarded two ex-employees over Kshs.2.3 million because their employer fired them without a hearing and suspended them on half pay without disciplinary rules.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was procedurally fair
Termination was procedurally unfair because the Claimants were not granted a hearing before termination
Show cause letters were issued and responses found wanting, leading directly to termination without a meeting or hearing. Section 41(1) of the Employment Act requires an explanation and hearing before termination. RW1 conceded the records did not show why the responses were found wanting. The court held the procedure is mandatory and its breach renders termination unfair despite communication of the reasons.
Compensation for unfair termination
Having proved unfair and unlawful termination, the Claimants are entitled to compensation under section 49(1)(c) of the Employment Act
The court found the termination unfair on procedural grounds, triggering the statutory compensation remedy. Compensation was quantified at the half salary withheld during suspension: Kshs.1,758,000 for the 1st Claimant and Kshs.585,000 for the 2nd Claimant, as no disciplinary rules justified suspension on half pay.
Whether reinstatement could issue
Reinstatement refused as it is time-barred and no special circumstances were shown
Section 12(3) of the ELRC Act permits reinstatement within 3 years of dismissal. Ten years had elapsed. Moreover, the Claimants testified they had secured other employment, contradicting their claim of inability to find work. No special circumstances justified reinstatement.
Suspension on half salary without disciplinary rules
The withholding of half salary during suspension was unjustified as no disciplinary rules authorized it
Section 12 of the Employment Act requires employers with more than 50 employees to have disciplinary rules. None were adduced. Relying on Lawrence Lien Shoona v East Africa Portland Cement quoting Simon Otieno Mboga v Kenya Forest Service, suspension terms must be provided for in disciplinary rules. The Claimants were terminated, not dismissed, so the withheld half salary was payable.
Legal principles established
#- The procedure in section 41(1) of the Employment Act is mandatory and an employer must accord an employee a hearing before termination
- Suspension on half pay must be grounded in disciplinary rules; absent such rules, an employee terminated (not dismissed) is entitled to the withheld half salary
Court orders
#- 1.Judgment for the Claimants: Robert Mwaniki Ndano awarded Kshs.1,758,000
- 2.Benjamin Mutua Kitongu awarded Kshs.585,000
- 3.Costs of the suit to the Claimants
- 4.Interest at court rates from the date of judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution / Employment and Labour Relations Court Act (Court with power under section 12(3) of the ELRC Act and sections 41, 43, 49 and 12 of the Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Robert Mwaniki Ndaru & another v Kenya Breweries Limited [2019] KEELRC 2502 (KLR)", Case Analysis (2019). Cause No. 1319 of 2011 (consolidated suits). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2502/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.