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ELRCPartially AllowedCause No. 619 of 2015· [2020] KEELRC 1854 (KLR)

Paul Gakure Wangare v Aldonai Enterprises Limited [2020] KEELRC 1854 (KLR)

Employment and Labour Relations Court of Kenya
22 January 2020
HWHellen S. Wasilwa
1,880 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenyan employers must issue a show cause letter and hold a hearing before firing for misconduct, or the dismissal is unfair and compensation follows.

What this practically means

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Executive summary

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The Claimant, a truck driver employed by the Respondent, sued for unfair termination and unpaid terminal dues, alleging he was sacked verbally because of his active role in recruiting 40 of the Respondent's 46 employees to join the Kenya Long Distance Truck Drivers and Allied Workers Union. The Respondent denied unfair termination, contending the Claimant absconded duty after being asked to explain misconduct, namely ferrying unauthorised passengers and failing to stop at designated company checkpoints. The Claimant and the Union's Secretary General testified that no show cause letter or disciplinary hearing preceded the termination, and a Conciliator had earlier recommended payment of 12 months' compensation. The Respondent's Director maintained the Claimant was never dismissed but left work. The court found no show cause letter was issued and no disciplinary hearing was convened. Applying Sections 41 and 45(2) of the Employment Act, 2007, it held that even if misconduct was suspected, the Claimant was entitled to a hearing, which was never accorded, rendering the termination unfair. On remedies, the court awarded one month's salary in lieu of notice (Kshs. 25,000) and 10 months' salary as compensation for unfair termination (Kshs. 250,000), totalling Kshs. 275,000, together with costs and interest at court rates from the date of judgment. The Claimant succeeded substantially, though the court did not adopt the Conciliator's recommended 12 months' compensation in full.

Key legal issues

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01

Whether the termination was procedurally fair under Section 41 of the Employment Act

Holding

The termination was procedurally unfair as the Claimant was never issued a show cause letter nor invited to a disciplinary hearing

Reasoning

The court found no letter was issued requiring the Claimant to show cause why he should not be terminated for ferrying passengers illegally or failing to stop at checkpoints. The Respondent also failed to demonstrate that it invited the Claimant to any disciplinary hearing. Section 41 mandates an explanation and hearing before termination on grounds of misconduct, which was not done.

p. 3
02

Whether the employer proved a valid and fair reason for termination under Section 45(2)

Holding

The Respondent failed to prove a valid reason; the termination was unfair

Reasoning

Section 45(2) requires the employer to prove a valid and fair reason related to conduct, capacity or compatibility and that fair procedure was followed. The Respondent alleged the Claimant ferried unauthorised passengers and failed to stop at checkpoints, but produced no show cause letter or evidence of a disciplinary process, and the Claimant denied the allegations. The termination was therefore unfair.

p. 3

Legal principles established

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  • An employee facing termination for misconduct is entitled to be heard, and failure to follow the procedure under Section 41 of the Employment Act renders the termination unfair under Section 45(2)

Court orders

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  1. 1.Respondent to pay the Claimant one month salary in lieu of notice of Kshs. 25,000
  2. 2.Respondent to pay the Claimant 10 months' salary as compensation for unfair and unjustified termination, being Kshs. 250,000
  3. 3.Total award of Kshs. 275,000
  4. 4.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 36
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 46(c)
  • Employment Act, 2007Section 47(1)
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 44(3) and (4)

Cases cited (2)

  • Joseph Ouko Lwambe v Royal Industries EPZ Limited
    [2018] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (unfair termination claim under the Employment Act, 2007)

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, "Paul Gakure Wangare v Aldonai Enterprises Limited [2020] KEELRC 1854 (KLR)", Case Analysis (2020). Cause No. 619 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1854/eng@2020-01-22

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