Patrick Ngugi Mwaura v Oxide Masters Limited & another [2020] KEELRC 1575 (KLR)
The bottom line
#A Kenyan court ruled a dismissal unfair because the employer had no records proving the employee was heard, but denied unproven benefit claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was unfair and unlawful
The dismissal was unfair: the employer failed to prove the reason and fair procedure, having produced no minutes of the alleged disciplinary meeting.
Sections 43 and 45 of the Employment Act require the employer to prove a valid reason and fair procedure. Absence at work is misconduct for which dismissal may follow, but the employee must first be heard. The Respondents asserted the Claimant was heard at a disciplinary meeting but produced no minutes or notes. The inability to produce the minutes showed non-adherence to Section 41, rendering the termination substantively and procedurally unfair.
Whether the 2nd Respondent (a director) was properly joined
The 2nd Respondent was wrongly enjoined; her name was struck out with no order as to costs.
The court noted a growing body of precedent on suits against employers as defined in Section 2 of the Employment Act but held it unnecessary to sue each director alongside the company. No plausible reason was given for singling out the 2nd Respondent, who had no contractual relationship with the Claimant, so her name was struck from the proceedings.
Entitlement to service pay, house allowance and leave pay
These heads were not proved; the Claimant failed to establish he never went on leave or was entitled to service.
The Claimant bore the burden of proving these claims. The Respondents adduced evidence of a contract with house allowance of 15% of basic pay and that the Claimant had taken leave days, and submitted he was an NSSF contributor barred from service pay under Section 35(6). The court found the Claimant did not prove that he never went on leave or that he was entitled to service, and refused those heads.
Legal principles established
#- In an unfair termination claim the employer bears the burden of proving the reason for termination and fair procedure under Sections 43 and 45 of the Employment Act.
- Failure to produce minutes of an alleged disciplinary hearing indicates non-adherence to Section 41 of the Employment Act, rendering the dismissal unfair.
Court orders
#- 1.Judgment for the Claimant against the 1st Respondent for one month's salary in lieu of notice – Kshs. 14,740/-
- 2.3 months' salary as compensation for unfair termination – Kshs. 44,220/-
- 3.Certificate of service to be collected by the Claimant
- 4.Costs of the suit against the 1st Respondent
- 5.Interest at court rates on the notice and compensation awards from the date of judgment till payment in full
- 6.The 2nd Respondent's name struck off the proceedings with no order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim for unfair and unlawful dismissal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Ngugi Mwaura v Oxide Masters Limited & another [2020] KEELRC 1575 (KLR)", Case Analysis (2020). Cause No 81 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1575/eng@2020-02-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.