Josphat Lolmeweti v Kenya Kazi Services Limited [2021] KEELRC 78 (KLR)
The bottom line
#A Kenyan employer cannot dismiss a worker for misconduct after already clearing them in a disciplinary hearing — doing so is unfair and costly.
What this practically means
#Executive summary
#Key legal issues
#Valid reason for summary dismissal
The claimant having been exonerated by a disciplinary committee, the respondent had no valid reason to summarily dismiss him
The claimant was suspended, subjected to a disciplinary hearing on 21st October 2014 and cleared, with a dispatch note reading 'cleared after disciplinary action'. The respondent, custodian of employment records, produced no minutes or investigation reports to controvert this. A second process on the same incident reversed the exoneration arbitrarily, so the employer failed to prove a valid reason under Section 45(2).
Fair procedure
Subjecting the claimant to a second disciplinary process after exoneration violated Sections 36, 41, 43 and 45 of the Employment Act and Article 41 of the Constitution
After a full disciplinary process culminating in exoneration and resumption of work, the respondent reversed the committee's decision through an arbitrary process by unknown persons. This amounted to double jeopardy, violated the right to a fair hearing under Section 41 and constituted an unfair labour practice under Article 41 of the Constitution.
Entitlement to reliefs
Claimant entitled to compensation under Section 49(1)(c) and (4) and terminal benefits, but not aggravated damages
Having served about two years and been dismissed without notice or terminal benefits after being cleared, the claimant received six months' salary as compensation. The court considered its earlier decision in John Mwanza Mbithuka as a guide and declined aggravated damages since the claimant did not prove entitlement, holding Section 49 compensation sufficient.
Legal principles established
#- Procedural fairness under Section 41 of the Employment Act is part of the employment contract in Kenya
- An employer who exonerates an employee through a disciplinary process cannot later dismiss him for the same misconduct; to do so is double jeopardy and unfair
- The employer bears the burden of proving a valid reason for termination under Section 45(2) of the Employment Act
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent
- 2.Kshs 105,402 being six months' salary as compensation for unlawful and unfair dismissal
- 3.Kshs 17,657 in lieu of one month notice
- 4.Kshs 52,701 in lieu of untaken leave days
- 5.Total award of Kshs 175,670
- 6.Interest at court rates from date of judgment until payment in full
- 7.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Article 41 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gicheru v Chuna Sacco Society Ltd (Cause E017 of 2022) [2023] KEELRC 2101 (KLR)[2023] KEELRC 2101 (KLR)19 Sept 2023
Cite this brief
#Cite this brief
Caselaw, "Josphat Lolmeweti v Kenya Kazi Services Limited [2021] KEELRC 78 (KLR)", Case Analysis (2021). Cause No. 1110 of 2015 (test suit for Cause No. 1109 of 2015/1738/2015 and 1736 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/78/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.