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ELRCDismissedCause No. 18 of 2019· [2020] KEELRC 1655 (KLR)

Patrick Onchoke Nyabuto v Rainforest Farmlands (K) Limited [2020] KEELRC 1655 (KLR)

Employment and Labour Relations Court of Kenya
6 February 2020
3,048 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 upheld a farm supervisor's dismissal because he ignored his employer's invitation to explain his 42-day absence from work.

What this practically means

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Executive summary

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The claimant, a supervisor at the respondent's Naivasha farm earning Ksh.32,937 monthly, was suspended on 18 June 2018 over allegations of sexually assaulting a minor child of a fellow employee, extended by a further two weeks. He was arrested and charged with defilement. He was invited to a disciplinary hearing scheduled for 20 July 2018 at 10.30pm, which the respondent later said was a typing error; the claimant, who feared attending at night, was denied access at the gate. He was dismissed on 13 September 2018 for absence from duty for 42 days. He sued for declarations that his suspension and summary dismissal were unfair and unlawful, damages for unfair dismissal, general damages for breach of the Employment Act, and general and aggravated damages for violation of Articles 28, 29, 30, 39, 41, 47 and 50 of the Constitution. The court framed four issues: lawfulness of the suspension, constitutional violations, justification of the summary dismissal, and remedies. It held the suspension was a lawful exercise of the employer's administrative prerogative to allow investigations. Though it found the 10.30pm hearing notice unreasonable and doubted the authenticity of the respondent's acknowledged copy, it held any unfair labour practice was cured by the notice to show cause dated 31 August 2018. The claimant failed to respond to that notice, and his advocates' intervention was premature. Summary dismissal under sections 41(2) and 44 of the Employment Act was found justified. A claim for unpaid suspension wages raised only in submissions was rejected as unpleaded under Rule 4 of the ELRC (Procedure) Rules, 2016. The entire claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Lawfulness of the suspension

Holding

The suspension was lawful, being an administrative prerogative exercised on a complaint by an employee to allow investigations

Reasoning

The court held that an employer may suspend an employee on good basis. The claimant was suspended by letter dated 18 June 2018 giving reasons, based on a complaint of sexual assault of a fellow employee's child. The claimant did not challenge the reasons; his only objection was that the matter fell outside the employment relationship, which the court rejected.

p. 2
02

Alleged constitutional violations

Holding

No constitutional violation arose; the defective 10.30pm hearing notice was cured by a subsequent notice to show cause dated 31 August 2018

Reasoning

Although the court found the requirement to attend a hearing at 10.30pm unreasonable and the authenticity of the respondent's acknowledged letter doubtful, the subsequent notice to show cause for absence gave the claimant an opportunity to be heard, curing the lapse and removing any constitutional violation under Article 41.

p. 3
03

Justification of summary dismissal

Holding

Summary dismissal was justified; the claimant failed to show cause or explain his 42-day absence

Reasoning

The claimant was issued a notice to show cause dated 31 August 2018 for absence from duty. He neither attended, replied, nor gave good cause, instead instructing advocates - which the court found premature. Sections 44(3), 44(4)(a) and 41(2) of the Employment Act entitled the employer to summarily dismiss him.

p. 4
04

Remedies

Holding

All remedies sought were refused as the dismissal was justified and unpleaded claims cannot be introduced via submissions

Reasoning

Damages for unfair dismissal and constitutional violations were found without foundation. A claim for unpaid wages during suspension was raised only in submissions without being pleaded, denying the respondent a fair chance to defend, contrary to Rule 4 of the ELRC (Procedure) Rules, 2016.

p. 4

Legal principles established

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  • An employer has the prerogative to suspend an employee on good basis to allow for investigations
  • Before summary dismissal for gross misconduct such as absence from work, the employee must be invited to attend and defend himself under sections 41(2) and 44(4)(a) of the Employment Act
  • Workplace misconduct should be addressed within the meaning of section 41 of the Employment Act at the shop floor, without the intervention of third parties
  • Matters not pleaded cannot be introduced through written submissions

Court orders

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  1. 1.The claims made are found without merit and dismissed in their entirety
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Employment ActCap 226
  • Employment Actsections 41, 41(2), 42(1), 44(3), 44(4)
  • Constitution of Kenya, 2010Articles 28, 29, 30, 39, 41, 47, 50
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 4

Cases cited (6)

  • Grace N Akinyi versus Narok County Government
    Cause No. 67 of 2019 (Nakuru)
  • Bernard Mwaura Mbuthia versus Nyahururu Water Sanitation Water Company Limited & another
    Cause No. 53 of 2019
  • Elizabeth Cherono Kurgat versus Kenya Literature Bureau
    [2014] eKLR
  • Faiza Mayabi versus First Community Bank Limited
    [2019] eKLR
  • Kenfreight (E.A.) Limited versus Benson K. Nguti
    (2016) eKLR
  • Nathan Kipruto Kemboi versus University of Eldoret
    Cause No. 1 of 2019 (Nakuru)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court (Procedure) Rules, 2016

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, "Patrick Onchoke Nyabuto v Rainforest Farmlands (K) Limited [2020] KEELRC 1655 (KLR)", Case Analysis (2020). Cause No. 18 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1655/eng@2020-02-06

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