Christine Mumbi Tatua v Dhl Supply Chain (K) Limited [2020] KEELRC 647 (KLR)
The bottom line
#DHL Supply Chain Kenya was ordered to pay an ex-employee 10 months' salary after unfairly firing her without letting her call witnesses or defend new charges.
What this practically means
#Executive summary
#Key legal issues
#Effect of respondent's failure to call evidence or file submissions
The claimant's evidence stands unchallenged and uncontroverted
The respondent filed a response but called no witness and filed no submissions, adopting only a sworn statement of its Business Unit Manager. Relying on the authorities on failure to adduce evidence, the court held the claimant's uncontroverted testimony remained unchallenged and the case would be determined on the claimant's evidence and submissions alone.
Procedural fairness under Section 41 of the Employment Act
The disciplinary process was procedurally unfair: the claimant was denied the right to call her witnesses and new charges not in the show cause letter were introduced at the hearing
The disciplinary minutes showed the claimant named four representatives/witnesses but only one was considered required and the representatives were told they would be called in 'if required'. Additionally, she was asked to respond to charges on update reports which were not in the show cause letter, contrary to the statutory requirement that she be informed of the grounds and heard.
Substantive fairness under Section 45 of the Employment Act
The termination was substantively unfair; the respondent did not act in accordance with justice and equity
The claimant testified she was overworked, blamed for others' faults, given new roles without induction or formal handover, and no performance evaluation was conducted for 2014/2015. Several less severe options, including a performance improvement scheme, existed but the respondent opted for the most severe punishment. The court found this fell short of the justice and equity standard in Section 45(4)(b).
Remedies under Sections 49 and 51 of the Employment Act
Certificate of service awarded; compensation of 10 months' salary (Kshs.1,379,000); bonus, general damages and pre-judgment interest refused
Applying Section 49(4) factors, including length of service and the manner of termination, the court fixed compensation at 10 months' salary. The certificate of service is a statutory entitlement under Section 51. The bonus claim was unsupported, general damages overlapped with compensation, and interest on unliquidated awards from filing was unjustified.
Legal principles established
#- Where a party fails to call evidence in support of its case, its pleadings remain mere statements of fact and the evidence adduced against it is uncontroverted and unchallenged
- Termination is unfair where the employer does not act in accordance with justice and equity and denies the employee the right to call witnesses
- Charging an employee at a disciplinary hearing with issues not contained in the show cause letter renders the process unfair
Court orders
#- 1.Declaration that the termination of the claimant's employment was procedurally and substantively unfair
- 2.Respondent directed to issue the claimant with a certificate of service in terms of Section 51 of the Employment Act if not already done
- 3.Compensation equivalent to 10 months' salary awarded, Kshs.1,379,000
- 4.Respondent to pay the claimant's costs of the suit
- 5.Interest to accrue on costs from the date of judgment
- Jurisdiction invoked
- First-instance employment and labour relations jurisdiction of the Industrial Court/ELRC; claim for unfair termination under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christine Mumbi Tatua v Dhl Supply Chain (K) Limited [2020] KEELRC 647 (KLR)", Case Analysis (2020). Memorandum of Claim dated 4th May 2015 (Employment and Labour Relations Court cause, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/647/eng@2020-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.