Kennedy Mutuku Mwove v M-Kopa Kenya Limited [2021] KEELRC 207 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the summary dismissal was substantively unfair
The Respondent did not demonstrate a valid and fair reason for termination as required by Section 45 of the Employment Act.
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.
Whether the summary dismissal was procedurally fair under Section 41 of the Employment Act
The dismissal was procedurally flawed for non-compliance with Section 41; the Claimant was not afforded an opportunity to confront the allegations.
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.
Entitlement to anticipatory earnings for the unexpired term of the contract
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.
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.
Compensation for unfair termination under Section 49(1)(c)
The equivalent of two months' salary (Kshs.85,000/=) awarded as fair compensation.
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.
Entitlement to pay in lieu of unutilised leave
Kshs.30,357/= awarded, being the leave entitlement pay acknowledged in the January payslip and confirmed unreleased.
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.
Legal principles established
#- 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
#- 1.Declaration that the Claimant's termination was wrongful and unfair
- 2.Compensation for unfair termination equivalent to two months' salary (Kshs.85,000/=) under Section 49(1)(c) of the Employment Act
- 3.One month's salary in lieu of notice (Kshs.42,500/=)
- 4.Pay in lieu of unutilised leave days (Kshs.30,357/=)
- 5.Respondent to issue the Claimant with a certificate of service within 30 days
- 6.Judgment entered for the Claimant for Kshs.157,857 with costs
- 7.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 (Article 162(2) jurisdiction implied; judgment relies on Employment Act, 2007 and Civil Procedure Act)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Odundo v Bidco Africa Limited (Cause E502 of 2022) [2025] KEELRC 894 (KLR)[2025] KEELRC 894 (KLR)20 Mar 2025
- Butoyi v Sheer Logic Management Consultants Ltd (Cause 274 of 2019) [2022] KEELRC 1456 (KLR)[2022] KEELRC 1456 (KLR)13 Jun 2022
Cite this brief
#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.