David Mburu Mwaura v Central Memorial Hospital Limited [2020] KEELRC 1338 (KLR)
The bottom line
#A Kenyan court cut a dismissed clinical officer's compensation to one month's salary because, even though the firing process was flawed, his own misconduct justified the dismissal.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof in unfair dismissal claims
The employee alleging unfair or unlawful dismissal must prove it, while the employer bears the burden of justifying the dismissal, failing which it is unfair under Section 45
The court applied Sections 43 and 45 of the Employment Act, allocating the burden: the employee proves the dismissal occurred and was unfair, while the employer must justify it with valid reasons and fair procedure. Although the employer proved the misconduct (soliciting money from a patient and forging a sick-off note), it failed on procedure, warranting limited compensation only.
Procedural fairness under Section 41
The dismissal was procedurally flawed as the employer did not conform to Section 41, despite the dismissal being substantively justified
The employer proved gross misconduct justifying dismissal, but went about it 'the wrong way', failing to conform to Section 41's procedural safeguards (notice, hearing, right to representation). The consequence was not reinstatement or full compensation but a capped award of one month's salary, since the Claimant's own misconduct caused the dismissal.
Terms of employment - permanent vs locum
The Claimant was not a permanent and pensionable employee; he was engaged on a temporary/locum basis
The court found, contrary to the Claimant's pleadings and testimony, that he was not permanent and pensionable. It accepted the Respondent's evidence that he was engaged as a temporary reliever for an employee on maternity leave, and found the Claimant lied in his pleadings and testimony.
Certificate of service under Section 51 of the Employment Act
The Claimant was entitled to a certificate of service, to be issued within 7 days failing which a fine of Kshs. 100,000/- applies
Relying on Section 51(3) of the Employment Act, the court ordered issuance of a certificate of service within 7 days, backed by a default fine of Kshs. 100,000/-, since none had been availed to the Claimant.
Legal principles established
#- An employer must justify a dismissal and comply with Section 41 procedural fairness; non-compliance entitles the employee to compensation even where the dismissal is substantively justified
Court orders
#- 1.Payment of Kshs. 23,300/- being October salary
- 2.Compensation capped at one month's salary - Kshs. 23,300/-
- 3.Costs of the suit limited to the awards in (a) and (b) above
- 4.Interest at court rates from October 2017 on the October salary award
- 5.Interest at court rates on the one month compensation from date of judgment till payment in full
- 6.Issuance of a certificate of service within 7 days, failing which a fine of Kshs. 100,000/- will be imposed by default
- 7.Automatic stay of execution for 14 days, and any execution thereafter must be sanctioned by the Court
- Jurisdiction invoked
- First-instance employment and labour relations claim under the Employment and Labour Relations Court Act (Section 12 invoked for exemplary damages); unfair dismissal under Sections 41, 43, 45 and 51(3) of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Mburu Mwaura v Central Memorial Hospital Limited [2020] KEELRC 1338 (KLR)", Case Analysis (2020). Cause No 39 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1338/eng@2020-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.