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ELRCDismissedNot stated in judgment (Employment and Labour Relations Court claim filed 14 May 2014)· [2020] KEELRC 1716 (KLR)

Emmanuel Kasandi Mujukane & another v Cosmos Limited [2020] KEELRC 1716 (KLR)

Employment and Labour Relations Court
7 February 2020
2,793 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

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A Kenyan court ruled two pharmacists were fairly dismissed because their employer proved valid reasons and followed proper disciplinary procedure.

What this practically means

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Executive summary

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The two Claimants, formerly Delivery Personnel of the Respondent, sued for general damages for breach of contract, exemplary damages for character assassination, terminal dues, costs and interest, alleging they were wrongly accused of theft and terminated without notice or hearing. At hearing they narrowed the claim to 12 months' salary as compensation for unfair termination, other prayers having been settled. The Respondent maintained the termination was for valid reasons: the Claimants were arrested on suspicion of handling stolen pharmaceutical drugs, admitted agreeing to help Mary Mwendia Mwaniki sell drugs for a fee without authorisation or the requisite government certificate, breaching contractual ethics clauses and the duty of fidelity, and it contended fair procedure under Section 41 was followed, with terminal dues paid and discharge certificates signed. The court framed two issues: whether the terminations were wrongful and whether the reliefs were due. It held procedural fairness was satisfied, the Respondent having produced show-cause letters, signed disciplinary minutes and termination letters, and both Claimants admitting they were heard with union representatives. The Respondent also discharged its burden under Section 43 by justifying the grounds under Section 47(5) - engagement in a competing business without consent. The termination was therefore not unfair; compensation was unavailable. The claims were dismissed with no order as to costs. Judgment delivered at Nairobi on 7 February 2020 by Maureen Onyango, Judge.

Key legal issues

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01

Whether the procedure for termination complied with Section 41 of the Employment Act

Holding

Procedure was fair; notices to show cause, disciplinary hearing minutes signed by the Claimants and presence of union representatives were proved

Reasoning

The Respondent produced the Notices to Show Cause letters, minutes of the disciplinary hearings and termination letters. Both Claimants admitted in testimony that they attended disciplinary hearings in the presence of union representatives and signed the minutes. The court held that to that extent procedural fairness as required by Section 41 was accorded, satisfying the fair-hearing requirement secured by the legislature.

p. 4
02

Whether there were valid and justifiable reasons for termination under Sections 43 and 45

Holding

Yes; the Respondent justified the grounds under Section 47(5) by showing the Claimants breached their contracts by engaging in a competing business and handling drugs without certification

Reasoning

The Claimants admitted agreeing to assist Mary Mwendia sell drugs for a fee, without permission and without the requisite government certificate, breaching contract clauses requiring ethics and observance of the Pharmacy and Poisons Law and the duty of fidelity. The Respondent reasonably believed valid grounds existed, discharging the Section 43 burden on a balance of probabilities.

p. 4
03

Whether the Claimants were entitled to 12 months' salary as compensation

Holding

No; compensation is contingent on a finding of unfair termination, which the court declined to make

Reasoning

Having found both procedural fairness and valid reasons, the court concluded the termination was not unfair. Since compensation and damages flow only from a finding of unfairness under Section 45, neither compensation nor damages were available, and the claims were dismissed with no order as to costs.

p. 4

Legal principles established

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  • An employer who produces notices to show cause, minutes of disciplinary hearings and termination letters, and before whom the employee admits attending a hearing with union representation, has accorded procedural fairness under Section 41 of the Employment Act.
  • The burden lies on the employer under Section 43 to prove justifiable grounds for termination, failing which the termination is unfair under Section 45.
  • Compensation is payable only where the court finds the termination unfair.

Court orders

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  1. 1.The claims are dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 42(1)
  • Employment ActSection 43
  • Employment ActSection 43(2)
  • Employment ActSection 45
  • Employment ActSection 47(5)
  • Employment ActSection 2
  • Kenya Pharmacy and Poisons Lawnot specified
  • Collective Bargaining Agreement (registered, annexed to Memorandum of Claim)Clause 13

Cases cited (6)

  • Tom Ndadema & Another v Club Click
    Industrial Court Cause No. 1591 of 2010
  • Attorney General vs. Blake
    [1998] 2 WLR 805
  • Lawrence Nyamichaba Ondari v National Hospital Insurance Fund
    [2018] eKLR
  • Ismail Hassan Abdullahi v Kenya Ports Authority
    [2013] eKLR
  • Kenya Plantation and Agricultural Workers Union v Unilever Tea Kenya
    [2017] eKLR
  • Samsung Electronics East Africa Ltd v K M
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act; suit filed as Industrial Court cause)

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, "Emmanuel Kasandi Mujukane & another v Cosmos Limited [2020] KEELRC 1716 (KLR)", Case Analysis (2020). Not stated in judgment (Employment and Labour Relations Court claim filed 14 May 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1716/eng@2020-02-07

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