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ELRCPartially AllowedCause No. 381 of 2015· [2020] KEELRC 1681 (KLR)

Allan Mwangi Muturi v Kenya Airways Authority [2020] KEELRC 1681 (KLR)

Employment and Labour Relations Court of Kenya
6 February 2020
4,469 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court awarded a former Kenya Airports executive over Kshs. 13.7 million because his employer fired him without proving its reasons or giving him a hearing.

What this practically means

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Executive summary

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The Claimant, formerly General Manager Procurement and Logistics at the Respondent authority, was interdicted on 27th August 2013 following the JKIA fire of 7th August 2013, accused of gross insubordination for failing to use direct procurement as directed by the Board, the Cabinet Secretary and the Principal Secretary during the emergency. A board staff committee on 4th December 2013 found no plausible grounds for interdiction and recommended his reinstatement. However, a board meeting on 20th December 2013 introduced new allegations and resolved to terminate his employment without hearing him; the termination letter was backdated to 6th January 2014. The Claimant sought declarations that the interdiction and termination were unlawful and unprocedural, reinstatement or compensation of up to 7 years' salary, notice pay, service pay, pension benefits and a certificate of service. The Court framed three issues: validity of reasons, due process, and remedies. It held that the Respondent failed to prove the reasons for termination under Sections 43 and 45 of the Employment Act, as the alleged directives were never produced and the Claimant had exonerated himself before the initial committee. Due process under Section 41 was breached because the board of 20th December 2013 terminated him without a hearing. The Court awarded maximum compensation of 12 months' salary, 3 months' notice pay, service pay of one month per year worked for 10 years, pension benefits, a certificate of service, costs and interest, totalling Kshs. 13,713,525 less statutory deductions. The prayers for reinstatement, 7 years' salary to retirement and general damages were not granted.

Key legal issues

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01

Whether there were valid reasons to terminate the Claimant

Holding

No valid reasons were proved; the Claimant was accused of defying board directives which were never produced in evidence, and he had been exonerated by the initial board committee

Reasoning

The Court examined the interdiction letter of 27th August 2013, the Claimant's written responses, and the minutes of the board committee of 4th December 2013 which found no plausible grounds for interdiction. The Respondent produced no written board resolutions or directives the Claimant allegedly disobeyed. Under Section 43(1) of the Employment Act the employer must prove the reasons for termination; having failed, the termination was unfair.

p. 6
02

Whether due process was followed before the termination

Holding

Due process was not followed; the board meeting of 20th December 2013 terminated the Claimant without hearing him, reversing the earlier committee's recommendation for reinstatement

Reasoning

Section 41 of the Employment Act requires an employer to explain reasons and hear representations before terminating for misconduct. The first board committee heard the Claimant and recommended reinstatement. A later board meeting on 20th December 2013 introduced new allegations and resolved to terminate without affording him an opportunity to respond, breaching fair procedure under Section 45(2).

p. 7
03

Whether the Claimant is entitled to the remedies sought

Holding

The Claimant was awarded maximum compensation of 12 months' salary, notice pay, service pay for 10 years, pension benefits, a certificate of service, costs and interest; reinstatement and general damages were not granted

Reasoning

The Court found the mistreatment justified maximum compensation. It awarded 12 months' salary under Section 49, notice pay, and one month's salary per year worked as decided by the board on 20/12/2013, plus pension benefits and a certificate of service. The prayer for 7 years' salary to retirement age was not granted, consistent with the principle that employment is not a lifetime commitment.

p. 7

Legal principles established

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  • The employer bears the burden of proving the reasons for termination; failure to do so renders the termination unfair under Section 45 of the Employment Act
  • A board or employer body cannot introduce new allegations and terminate an employee without affording him a hearing after an initial disciplinary committee has exonerated him
  • An employee facing termination on grounds of misconduct is entitled to be heard and to have representations considered under Section 41 of the Employment Act

Court orders

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  1. 1.12 months' salary as compensation for unfair and unlawful termination (12 x 548,541 = 6,582,492/=)
  2. 2.3 months' salary as notice pay (3 x 548,541 = 1,645,623/=)
  3. 3.Pension benefits from the pension scheme
  4. 4.Issuance of a certificate of service
  5. 5.Equivalent of one month's salary for each year worked (10 x 548,541 = 5,485,410/=), total award 13,713,525/= less statutory deductions
  6. 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 236
  • Employment Act, 2007Sections 41, 42(1), 43(1)&(2), 44(3)&(4), 44(4)(c), 45(2), 49
  • Public Procurement and Disposal Act, 2005Section 74
  • Public Procurement and Disposal Regulations, 2006Regulation 8
  • Industrial Court ActSection 12(3)

Cases cited (5)

  • Fredrick Saundu Amolo –v- Principal Namanga Mixed Day Secondary School & 2 others
    [2014] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Gitau vs. East African Power and Lighting Co. Limited
    (1986) KLR 365
  • Darn Otieno v Stanbic Bank Kenya Limited
    [2012] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Industrial Court Act (Section 12(3) referenced) and the Employment Act 2007

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, "Allan Mwangi Muturi v Kenya Airways Authority [2020] KEELRC 1681 (KLR)", Case Analysis (2020). Cause No. 381 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1681/eng@2020-02-06

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