Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 81 of 2018· [2020] KEELRC 1575 (KLR)

Patrick Ngugi Mwaura v Oxide Masters Limited & another [2020] KEELRC 1575 (KLR)

Employment and Labour Relations Court
24 February 2020
2,861 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

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

#
The Claimant sued for unfair and unlawful dismissal, alleging that in August 2017 the 2nd Respondent verbally instructed him not to report to work without explanation or a hearing. He sought August 2017 salary, one month's pay in lieu of notice, two years' house allowance, leave pay, service pay and maximum 12 months' compensation. The Respondents admitted the employment relationship (from 1st September 2016) but maintained the Claimant was summarily dismissed on 31st July 2017 for missing a mandatory meeting on 22nd July and absconding from work, and that all dues were paid. They denied the court's geographical jurisdiction and sought the 2nd Respondent's removal from the suit. Both parties testified; the Respondents' witness conceded there were no minutes of the disciplinary meeting and that dismissal was verbal. The court applied Sections 43, 45 and 41 of the Employment Act, holding that the employer bore the burden of proving both the reason for termination and fair procedure. The failure to produce minutes of the alleged disciplinary hearing showed non-adherence to Section 41, rendering the dismissal unfair. The Claimant, however, failed to prove his house allowance, leave pay and service pay claims. The court found no plausible reason for joining the director, striking her name from the proceedings. Judgment was entered for the Claimant against the 1st Respondent for one month's salary in lieu of notice (Kshs. 14,740), three months' compensation (Kshs. 44,220), a certificate of service, costs, and interest on the monetary awards from the date of judgment.

Key legal issues

#
01

Whether the summary dismissal was unfair and unlawful

Holding

The dismissal was unfair: the employer failed to prove the reason and fair procedure, having produced no minutes of the alleged disciplinary meeting.

Reasoning

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.

p. 3
02

Whether the 2nd Respondent (a director) was properly joined

Holding

The 2nd Respondent was wrongly enjoined; her name was struck out with no order as to costs.

Reasoning

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.

p. 3
03

Entitlement to service pay, house allowance and leave pay

Holding

These heads were not proved; the Claimant failed to establish he never went on leave or was entitled to service.

Reasoning

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.

p. 3

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. 1.Judgment for the Claimant against the 1st Respondent for one month's salary in lieu of notice – Kshs. 14,740/-
  2. 2.3 months' salary as compensation for unfair termination – Kshs. 44,220/-
  3. 3.Certificate of service to be collected by the Claimant
  4. 4.Costs of the suit against the 1st Respondent
  5. 5.Interest at court rates on the notice and compensation awards from the date of judgment till payment in full
  6. 6.The 2nd Respondent's name struck off the proceedings with no order as to costs

Authorities

#

Legislation

  • Employment ActSection 47(5)
  • Employment ActSection 45(2)
  • Employment ActSection 43(1) and 43(2)
  • Employment ActSection 41
  • Employment ActSection 35(6)
  • Employment ActSection 2
  • Employment Act 2007noted generally in submissions on joinder of directors

Cases cited (6)

  • Donald Odeke v Fidelity Security
    [2012] eKLR
  • Kenya Petroleum Oil Workers Union v Kenya Shell Limited
    [2014] eKLR
  • Daniel Mutisya Masesi v Romy Madan & Another
    [2013] eKLR
  • Elijah Kipkoros Tonui v Ngara Opticians t/a Bright Eyes Limited
    [2014] eKLR
  • John Ngoko Isoe v Nyansiongo Tea Factory Co. Ltd
    [2017] eKLR
  • Francis Nyongesa Kweyu v Eldoret Water and Sanitation Company Limited
    [2017] eKLR
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.