Patrick Onchoke Nyabuto v Rainforest Farmlands (K) Limited [2020] KEELRC 1655 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Lawfulness of the suspension
The suspension was lawful, being an administrative prerogative exercised on a complaint by an employee to allow investigations
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.
Alleged constitutional violations
No constitutional violation arose; the defective 10.30pm hearing notice was cured by a subsequent notice to show cause dated 31 August 2018
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.
Justification of summary dismissal
Summary dismissal was justified; the claimant failed to show cause or explain his 42-day absence
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.
Remedies
All remedies sought were refused as the dismissal was justified and unpleaded claims cannot be introduced via submissions
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.
Legal principles established
#- 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
#- 1.The claims made are found without merit and dismissed in their entirety
- 2.Each party shall bear own costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mburu v Co-operative Bank of Kenya Ltd & another (Cause 972 of 2015) [2023] KEELRC 454 (KLR)[2023] KEELRC 454 (KLR)23 Feb 2023
Cite this brief
#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.