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ELRCPartially AllowedCause No 418 of 2017· [2020] KEELRC 1867 (KLR)

Miriam Wanjiru Njoya v Miriam Wanjiru Njoya [2020] KEELRC 1867 (KLR)

Employment and Labour Relations Court
22 January 2020
NMNzioki wa Makau
3,491 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a sacco's dismissal of its loans officer unfair because she was never given a hearing, awarding limited compensation.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent cooperative society as a loans officer from 1st April 2014, was summarily dismissed by letter of 29th May 2017. She sued for three months' salary in lieu of notice, severance pay, and twelve months' compensation for wrongful dismissal. The Respondent defended the suit, contending the Claimant deserted duty after a departmental transfer to head office on 29th March 2017, amounting to repudiation of the employment contract, and counterclaimed for three months' salary in lieu of notice. Both parties testified and filed submissions, the Claimant relying on authorities on the employer's burden of proof and the section 41 hearing requirement, the Respondent on desertion authorities. The court held that although grounds of recalcitrance and insubordination may have existed, the dismissal was unlawful because the Claimant was never accorded a hearing; after a notice to show cause she should have been summoned to a disciplinary hearing before dismissal. The Respondent also failed to discharge its burden under section 43 of proving the reasons for termination. On the counterclaim, the court noted the Claimant's communicated illness and the Respondent's admission it had no proof she was not sick, and dismissed the counterclaim. Judgment was entered for the Claimant for a declaration that her dismissal was unfair and unlawful and compensation of Kshs. 63,661/-, being one month's salary under section 49, the court limiting compensation because the Claimant contributed to the situation she faced. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the summary dismissal was substantively and procedurally fair

Holding

Although grounds of recalcitrance and insubordination may have existed, the dismissal was unlawful because the Claimant was never heard before dismissal

Reasoning

The court accepted that the employer had a statutory right under section 44 to summarily dismiss for gross misconduct, but such dismissal must follow a fundamental breach established after due process. The Claimant was not summoned to a disciplinary hearing after responding to the notice to show cause, and the Board decided her fate in her absence. Procedural fairness under section 41 was therefore breached, entitling her to compensation.

p. 3
02

Whether the Claimant deserted duty, sustaining the counterclaim

Holding

The counterclaim for three months' salary in lieu of notice failed

Reasoning

The Respondent alleged the Claimant's absence amounted to repudiation by breach. However, the Claimant communicated illness by SMS and asserted sickness in her response to the show cause letter. The Respondent admitted it had no proof of whether the Claimant was sick, and the Claimant was denied access to her workstation when she reported. The counterclaim was dismissed with no order as to costs.

p. 3
03

Whether the dismissal was discriminatory

Holding

No express finding of discrimination was made; the claim succeeded on unfair termination only

Reasoning

The Claimant argued pre-meditation and discrimination, relying on Hesbon Ngaruiya Waigi v Equitorial Commercial Bank Limited. The court did not make a specific finding on discrimination but found the dismissal unlawful and unfair for want of a hearing, and awarded compensation on that basis.

p. 3

Legal principles established

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  • The employer bears the statutory burden of proving the reason or reasons for termination; failure to do so renders the termination unfair
  • Summary dismissal for misconduct is unlawful unless the employee is first given a hearing under section 41 of the Employment Act

Court orders

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  1. 1.A declaration that the dismissal of the Claimant was unfair and unlawful
  2. 2.Kshs. 63,661/- being compensation for her unlawful dismissal
  3. 3.Each party to bear their own costs
  4. 4.The counterclaim is dismissed with no order as to costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44 (including 44(2), 44(3), 44(4)(g))
  • Employment ActSection 45
  • Employment ActSection 49
  • Constitution of Kenya, 2010Article 41(2)
  • Constitution of Kenya, 2010Article 47(1)

Cases cited (7)

  • Barclays Bank of Kenya Ltd & Another v Gladys Muthoni & 20 Others
    [2018] eKLR
  • Hesbon Ngaruiya Waigi v Equitorial Commercial Bank Limited
    [2103] eKLR
  • CMC Aviation Limited v Mohamed Noor
    [2015] eKLR
  • Nicholas Otinyu Muruka v Equity Bank Limited
    [2013] eKLR
  • Ronald Nyambu Daudi v Tornado Carriers Limited
    [2019] eKLR
  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Western Excavating (ECC) Ltd v Sharp
    [1978] 1 All ER 713
Jurisdiction invoked
First-instance employment dispute 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, "Miriam Wanjiru Njoya v Miriam Wanjiru Njoya [2020] KEELRC 1867 (KLR)", Case Analysis (2020). Cause No 418 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1867/eng@2020-01-22

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