Josephat Makhoha v Kleen Homes Security Services Ltd [2020] KEELRC 1799 (KLR)
The bottom line
#A Kenyan court ruled a security guard's dismissal unfair because the employer decided to fire him before giving him a hearing.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
The dismissal was procedurally unfair because the decision had been taken before the Claimant was heard
The dismissal letter was dated 27 March 2013 while the Claimant was only summoned to the head office and informed of the dismissal on 6 April 2013. Section 41(2) of the Employment Act requires an employee be afforded an opportunity to be heard before dismissal. Since the decision preceded any hearing, the procedural requirement was breached. The Respondent, absent at the hearing, did not rebut this.
Substantive fairness of the dismissal
The dismissal was substantively unfair; the employer failed to justify it
The Respondent did not attend court to discharge the burden under sections 43 and 45 of the Employment Act and filed no witness statements, indicating it had no witnesses. Further, the General Manager had approved the Claimant's reinstatement after his appeal, suggesting the Respondent found him blameless, and never explained why reinstatement was not implemented. The letter also acknowledged the theft predated the Claimant's five-month posting at the hospital.
Entitlement to pay in lieu of notice
The Claimant was entitled to one month's salary in lieu of notice
The Respondent did not give the requisite notice under section 35(1) of the Employment Act, 2007. The Claimant's salary was Kshs 15,000/- per month, and the Court awarded the equivalent of one month's salary.
Accrued leave claim
Claim for untaken leave for 8 years declined
Annual leave of 21 days on full pay is a statutory entitlement, but a leave application form showed the Claimant went on leave in 2012. Section 28(4) limits carry-forward of leave days, and there was no evidence the Claimant applied for and was denied leave. The claim of Kshs 120,000/- was therefore refused.
Legal principles established
#- A decision to dismiss taken before the employee is afforded a hearing violates section 41(2) of the Employment Act, rendering the dismissal procedurally unfair
- An employer who fails to attend court or file witness statements does not discharge the burden under sections 43 and 45 of the Employment Act to justify a dismissal
Court orders
#- 1.Declaration that the summary dismissal of the Claimant was unfair
- 2.Award of Kshs 135,000/- being compensation equivalent to 9 months' salary
- 3.Award of Kshs 15,000/- being one month's pay in lieu of notice
- 4.Award of Kshs 2,000/- uniform refund (total award Kshs 152,000/-)
- 5.Respondent to issue a Certificate of Service within 21 days
- 6.Claimant to have costs on a half-scale
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the employment cause (Employment Act, 2007 and the court's statutorily conferred jurisdiction; no specific article cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephat Makhoha v Kleen Homes Security Services Ltd [2020] KEELRC 1799 (KLR)", Case Analysis (2020). Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1799/eng@2020-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.