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ELRCPartially AllowedCause No 277 of 2016· [2021] KEELRC 207 (KLR)

Kennedy Mutuku Mwove v M-Kopa Kenya Limited [2021] KEELRC 207 (KLR)

Employment and Labour Relations Court
14 December 2021
4,557 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Airtel was ordered to pay a dismissed employee Kshs.157,857 because it could not prove it gave him a fair hearing before firing him.

What this practically means

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Executive summary

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The Claimant, employed as a Customer Care Representative from 26th September 2015 at a gross salary of Kshs.40,000.00 (later Kshs.42,500.00), was summarily dismissed on 7th January 2016 for absenteeism on 25th December 2015. He claimed the dismissal was wrongful and unfair, sought a declaration, compensation for the unexpired contract term, notice pay, leave pay, public holiday overtime and a certificate of service. The Respondent maintained the dismissal was justified, relying on its Policies and Procedures Manual and Sections 44(4) of the Employment Act, contending the Claimant nursed a hangover and communicated no reason for his absence. The Court framed two issues: whether the summary dismissal was unfair, and entitlement to reliefs. Relying on Sections 41, 43, 45 and 47(5) of the Employment Act and Court of Appeal authorities, the Court found the Respondent had not demonstrated a valid and fair reason, since one-day absence was a minor offence under its own Manual attracting only a verbal warning to written caution. Procedurally, although witnesses affirmed a disciplinary process, no invitation, minutes or record of proceedings was tendered; the dismissal was therefore procedurally flawed for non-compliance with Section 41. The Court declared the termination wrongful and unfair, awarded two months' salary as compensation under Section 49(1)(c), one month's notice pay, and leave pay of Kshs.30,357, and ordered issuance of a certificate of service. Claims for anticipatory earnings for the unexpired contract term and public holiday overtime were declined. Judgment was entered for the Claimant for Kshs.157,857 with costs and interest.

Key legal issues

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01

Whether the summary dismissal was substantively unfair

Holding

The Respondent did not demonstrate a valid and fair reason for termination as required by Section 45 of the Employment Act.

Reasoning

The Claimant's one-day absence was categorised as a minor offence under the Respondent's own Policies and Procedures Manual attracting only a verbal warning to written caution. There was no evidence he was a habitual absentee. His absence should have been addressed per the Manual. On balance of probabilities the Respondent failed to demonstrate a valid and fair reason.

p. 5
02

Whether the summary dismissal was procedurally fair under Section 41 of the Employment Act

Holding

The dismissal was procedurally flawed for non-compliance with Section 41; the Claimant was not afforded an opportunity to confront the allegations.

Reasoning

Although Respondent's witnesses confirmed a disciplinary process occurred, no tangible evidence was tendered - no notice of invitation, no record of proceedings or minutes. The show cause letter was silent on a hearing, and the termination letter made no reference to a disciplinary hearing or findings. The Claimant established he was dismissed without an opportunity to confront the allegations in the presence of a representative.

p. 5
03

Entitlement to anticipatory earnings for the unexpired term of the contract

Holding

The claim for the remainder of the contract is disallowed; anticipatory earnings are not anchored in law and the contract had an inbuilt one-month termination clause.

Reasoning

The Employment Act, 2007 has no provision on anticipatory earnings and courts have been reluctant to make such awards. Further, Clause 11 of the contract allowed either party to terminate on one month's written notice, meaning either party could end the contract at any time.

p. 6
04

Compensation for unfair termination under Section 49(1)(c)

Holding

The equivalent of two months' salary (Kshs.85,000/=) awarded as fair compensation.

Reasoning

In making the award the Court considered that the Claimant served only 3 months and 12 days, had no previous notice to show cause or warning, did not appeal the decision as advised, and contributed to the termination.

p. 6
05

Entitlement to pay in lieu of unutilised leave

Holding

Kshs.30,357/= awarded, being the leave entitlement pay acknowledged in the January payslip and confirmed unreleased.

Reasoning

The payslip for January on record showed leave entitlement pay of Kshs.30,357.00. The Claimant testified it was not paid, and the Respondent confirmed the sum had not been released pending clearance.

p. 6

Legal principles established

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  • For a termination to be fair, the employer must have both a valid and fair reason and employ a fair procedure under Section 45 of the Employment Act.
  • A procedurally flawed dismissal without compliance with Section 41 of the Employment Act is unfair even where misconduct may exist.
  • An employer alleging a disciplinary hearing must furnish evidence of it, such as notice of invitation, proceedings or minutes; absent such evidence the employee's account prevails on a balance of probabilities.

Court orders

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  1. 1.Declaration that the Claimant's termination was wrongful and unfair
  2. 2.Compensation for unfair termination equivalent to two months' salary (Kshs.85,000/=) under Section 49(1)(c) of the Employment Act
  3. 3.One month's salary in lieu of notice (Kshs.42,500/=)
  4. 4.Pay in lieu of unutilised leave days (Kshs.30,357/=)
  5. 5.Respondent to issue the Claimant with a certificate of service within 30 days
  6. 6.Judgment entered for the Claimant for Kshs.157,857 with costs
  7. 7.Interest at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSections 43, 45, 47(5), 44(2), 44(3), 44(4), 49(1)(c), 49(4)(f)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (14)

  • John Rioba Maugo v Riley Falcon Security Limited
    [2016] eKLR
  • Anthony Mkala Chituvi v Malindi Water and Sewerage Company Limited
    [2013] eKLR
  • Nicholas Otinyu Muruka v Equity Bank Limited
    [2013] eKLR
  • Behold Shako v Shifa Chem Limited
    [2014] eKLR
  • Republic v National Land Commission & 3 Others Ex parte Muslim Associations
    [2018] eKLR
  • Banking, Insurance and Finance Union (Kenya) v Barclays Bank of Kenya Ltd
    [2014] eKLR
  • Patrick Lumumba Kimuyu v Prime Fuels (K) Ltd
    [2018] eKLR
  • Kenya Tertiary and Schools Workers Union v Ananda Marga Academy
    [2019] eKLR
  • CMC Aviation Limited v Mohammed Noor
    [2013] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Naima Khamis v Oxford University Press (EA) Limited
    [2017] eKLR
  • Hema Hospital v Wilson Makongo Marwa
    [2015] eKLR
  • Le Monde Luggage cc t/a Pakwells Petze v Commissioner G. Dun and others, Appeal Case No. JA 65/205
  • D. K. Njagi Marete v Teachers Service Commission
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Article 162(2) jurisdiction implied; judgment relies on Employment Act, 2007 and Civil Procedure Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kennedy Mutuku Mwove v M-Kopa Kenya Limited [2021] KEELRC 207 (KLR)", Case Analysis (2021). Cause No 277 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/207/eng@2021-12-14

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