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ELRCDismissed· [2020] KEELRC 1601 (KLR)

Joram Kidiga Ayiga v Patrick Mwangi t/a Banana Leaf Hotel [2020] KEELRC 1601 (KLR)

Employment and Labour Relations Court
18 February 2020
NMNzioki wa Makau
2,241 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a security guard's unfair dismissal claim because he skipped two disciplinary hearings he was summoned to attend.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as a security guard from 16th October 2016 at a monthly salary of Kshs. 8,000/-, sued for unfair and unlawful termination of employment. He claimed his services were terminated by phone by one Mr. Maina without proof of misconduct or a show-cause notice, and sought compensation, salary arrears of Kshs. 3,200/- for November 2017, one month's salary in lieu of notice, and costs. The Respondent denied liability. Four witnesses testified. The Respondent's case was that a DVD went missing on 8th November 2017 while the Claimant was on duty; the other guards were fined through salary deductions, and the Claimant was summoned verbally for disciplinary meetings on successive days but never showed up and thereafter never resumed work. The Respondent relied on Anthony Nguta Munywoki & 2 Others v County Supermarkets Limited [2019] eKLR. The court, applying Section 41 of the Employment Act, held that although an employer must accord an employee a fair hearing before termination on grounds of misconduct, the Claimant never appeared for the hearing contemplated despite being summoned twice, and therefore could not accuse the Respondent of failing to hear him. The suit was found unmerited and was dismissed with no order as to costs. Judgment was delivered at Nyeri on 18th February 2020 by Nzioki wa Makau, Judge.

Key legal issues

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01

Whether the Claimant was accorded a fair hearing before termination under Section 41 of the Employment Act

Holding

The Claimant was not unfairly terminated because he failed to take advantage of the opportunity to defend himself by not appearing for the disciplinary hearing he was summoned to attend

Reasoning

The court found that following the loss of a DVD while under the Claimant's watch, the supervisor summoned the guards to a meeting the next morning. The other guards attended but the Claimant failed to show up on two occasions despite being summoned. Section 41 requires an employer to explain the reasons for contemplated termination and allow the employee to be heard. Since the Claimant never appeared for the hearing contemplated, he could not accuse the Respondent of denying him a hearing.

p. 2
02

Whether the Claimant proved his claim for unfair and unlawful termination

Holding

The Claimant failed to prove his case and the suit was dismissed

Reasoning

The Respondent's evidence showed the Claimant was suspected of theft of a DVD, was summoned for disciplinary action on two occasions, and never showed up, thereafter never returning to work. The Respondent relied on Anthony Nguta Munywoki & 2 Others v County Supermarkets Limited [2019] eKLR where a claim was dismissed because the claimant failed to show up for the disciplinary panel. The court adopted the same reasoning and found the claim unmerited.

p. 2

Legal principles established

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  • An employer must accord an employee a fair hearing before terminating employment on grounds of misconduct under Section 41 of the Employment Act, but an employee who fails to appear for the hearing contemplated cannot later allege unfair termination for want of hearing

Court orders

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  1. 1.Dismissal of the Claimant's suit
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 42(1)

Cases cited (1)

  • Anthony Nguta Munywoki & 2 Others v County Supermarkets Limited
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair and unlawful termination of employment claims

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joram Kidiga Ayiga v Patrick Mwangi t/a Banana Leaf Hotel [2020] KEELRC 1601 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1601/eng@2020-02-18

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