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ELRCPartially AllowedCause No. 1692 of 2014· [2020] KEELRC 765 (KLR)

Joseph Mwinzi Mulwa v Tangren Restaurant & 2 others [2020] KEELRC 765 (KLR)

Employment and Labour Relations Court
26 June 2020
3,546 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ruled a cook's dismissal over alleged theft was unfair because his employer never gave him a hearing, awarding him KES 118,970 plus costs.

What this practically means

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Executive summary

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The claimant, employed by the 1st respondent as a cook from 9th August 2012, was dismissed on 16th May 2014 on suspicion of theft after a director accused him of stealing a chicken he had purchased. He sued for compensation for loss of employment, payment in lieu of notice, severance pay, pro-rata leave, overtime, public holiday pay and unpaid salary, totalling KES 597,043. The respondents admitted the employment and dismissal but maintained due process was followed, relying solely on a Parklands Police Station letter alleging the claimant confessed and asked for forgiveness. The respondents called no witnesses. The court found that Section 41 of the Employment Act was not complied with: no disciplinary process was undertaken, no notice of termination issued, and the police letter lacked the claimant's acknowledgment, signature or an Occurrence Book entry and was uncorroborated. The termination was therefore unfair under Section 45. The court awarded payment in lieu of notice (KES 17,000), public holiday pay (KES 23,508) on the strength of the respondents' failure to produce records under Sections 10(7) and 74, salary for days worked in May (KES 10,462), and four months' salary as compensation (KES 68,000), totalling KES 118,970. Claims for severance pay, pro-rata leave and overtime failed: the dismissal was not a redundancy, the claimant admitted taking his leave, and his overtime claim was speculative. Judgment was entered against the 1st respondent with costs and interest from the date of judgment.

Key legal issues

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01

Whether the termination was unfair

Holding

The termination was unfair within the meaning of Section 45 of the Employment Act as no disciplinary process was undertaken and no notice was issued

Reasoning

Section 41(1) requires an employer to explain the reason for termination to the employee in a language they understand and hear their representations before dismissal. The Claimant was never taken through a disciplinary process or issued a notice of termination. The Respondents' only supporting document, a Parklands Police Station letter alleging confession, was uncorroborated by any witness, lacked the Claimant's signature or acknowledgment, and showed no Occurrence Book entry, and the Claimant's sworn testimony denied confessing.

p. 4
02

Whether the dismissal amounted to redundancy entitling the Claimant to severance pay

Holding

The dismissal did not amount to redundancy and the claim for severance pay failed

Reasoning

Redundancy under Section 2 of the Employment Act requires loss of employment by involuntary means through no fault of the employee at the employer's initiative, as expounded by the Court of Appeal in Kenya Airways Ltd v Aviation & Allied Workers Union. The Claimant's dismissal was on grounds of alleged misconduct, not economic or operational circumstances rendering his services superfluous, so it could not qualify as redundancy.

p. 4
03

What compensation was appropriate for unfair termination

Holding

Compensation equivalent to 4 months' salary (KES 68,000) awarded under Section 49 of the Employment Act

Reasoning

Having found unfair termination, the court considered the factors in Section 49(4), including the Claimant's length of service of almost two years and the manner of dismissal. A 4-month salary award was deemed reasonable rather than the maximum 12 months sought.

p. 5

Legal principles established

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  • Even where an employer alleges a grave offence such as theft, due process under Section 41 of the Employment Act must be followed before dismissal
  • Where the employer fails to produce employment records, the burden falls on the employer to prove or disprove the alleged term of employment (Section 10(7))
  • Uncorroborated police station letters alleging an employee's confession, without acknowledgment, signature or OB record, cannot establish grounds for dismissal

Court orders

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  1. 1.One month's salary in lieu of notice of KES 17,000
  2. 2.Payment for public holidays worked of KES 23,508
  3. 3.Salary for days worked in May 2015 of KES 10,462
  4. 4.Four (4) months' salary as compensation of KES 68,000
  5. 5.Total award of KES 118,970 against the 1st Respondent
  6. 6.The 1st Respondent shall pay the Claimant's costs for the suit
  7. 7.The decretal sum shall attract interest at court rates from date of judgment until payment in full

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 41(1)
  • Employment ActSection 41(2)
  • Employment ActSection 40(1)(a) and (b)
  • Employment ActSection 44(3) and (4)
  • Employment ActSection 45
  • Employment ActSection 49(1)(a)
  • Employment ActSection 49(4)
  • Employment ActSection 2
  • Employment ActSection 10 and 74
  • Employment ActSection 10(7)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (2)

  • Tom Ndadema & Another v Club Click
    Industrial Cause No. 1591 of 2010
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joseph Mwinzi Mulwa v Tangren Restaurant & 2 others [2020] KEELRC 765 (KLR)", Case Analysis (2020). Cause No. 1692 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/765/eng@2020-06-26

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