Ethan Ngigi Gathege v Nairobi Institute of Business Studies Limited [2021] KEELRC 183 (KLR)
The bottom line
#A Kenyan court ruled an employer's vague suspension letter and lack of a fair hearing made the dismissal unfair, awarding the employee Kshs.159,035.68.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for summary dismissal (desertion of duty)
The reason was neither valid nor fair; the ambiguous suspension letter made return conditional on HR communication, and the employer made no attempt to contact the Claimant before dismissing him a month later.
The suspension letter limited suspension to two weeks but also required the Claimant to await further communication from the Human Resource. RW1 conceded the wording could have been better and that no communication was made within the two weeks. The letter was amenable to different interpretations, and the Respondent led no evidence of attempts to contact the Claimant after the two weeks lapsed before dismissing him for desertion over a month later.
Procedural fairness under Section 41 of the Employment Act
The Respondent failed to prove compliance with Section 41; there was no evidence of notification of transgressions, invitation to a disciplinary hearing, or minutes.
The Claimant testified he was never taken through a disciplinary hearing. RW1 asserted a hearing occurred but produced no invitation or minutes and contradicted himself on whether the Claimant was invited in writing. Guided by Radido J. in Loice Otieno v Kenya Commercial Bank, the employer must demonstrate it explained the reasons, allowed a representative, and heard the employee's explanations; none was proved.
Entitlement to reliefs
Notice pay, four months' compensation and salary for days worked in March 2017 awarded; leave, general damages and unpleaded discrimination claims disallowed.
Having found the dismissal unfair, the Court awarded one month's notice pay under Section 35, compensation equivalent of four months' salary considering the roughly 5 years 8 months of service, two prior warning letters and the anxiety suffered, and Kshs.6,535.68 for six days worked in March 2017. Leave and general damages failed for want of evidence, and the discrimination claim failed as it was not pleaded.
Legal principles established
#- A termination of employment is unfair unless the employer proves a valid and fair reason and a fair procedure (Section 45(2), Employment Act)
- An ambiguous suspension letter cannot found a dismissal for desertion where the employee awaited the promised communication
- Claims not pleaded cannot be introduced or prosecuted through submissions
Court orders
#- 1.Judgment entered for the Claimant for Kshs.159,035.68 with costs, comprising one month's salary in lieu of notice (Kshs.30,500), compensation equivalent of four months' salary (Kshs.122,000) and salary for 6 days worked in March 2017 (Kshs.6,535.68)
- 2.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ethan Ngigi Gathege v Nairobi Institute of Business Studies Limited [2021] KEELRC 183 (KLR)", Case Analysis (2021). Cause No 1256 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/183/eng@2021-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.