Moki Muithya v Kitui Flour Mills Limited [2021] KEELRC 227 (KLR)
The bottom line
#A Kenyan court awarded a driver ten months' salary because his employer fired him without valid reasons or a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was based on valid reasons
The Respondent failed to prove the validity of the alleged decrease in performance or that the accident was caused by the Appellant; termination was not based on valid reasons.
The Appellant denied receiving the dismissal letter and no evidence showed service of any of the three letters. The Respondent called no witness. The purported letter alleged a constant decrease in performance, but no evidence proved the truth or validity of that allegation. Although an accident was pleaded, it was not mentioned in the dismissal letter and nothing showed the Appellant caused it. Under Sections 43 and 45 of the Employment Act, the employer must prove the reason for termination.
Whether the termination was procedurally fair and lawful
The termination breached Section 41 of the Employment Act: no notice of reasons, no hearing in the presence of a fellow employee or representative, no opportunity to make representations.
Section 41 requires an employer, before terminating on grounds of misconduct, poor performance or incapacity, to explain the reasons to the employee in a language he understands and to hear and consider representations. The Appellant testified he was told to go away orally, with no disciplinary meeting called. Payment in lieu of notice does not cure procedural unfairness. The termination was therefore unfair, unlawful and contrary to Section 41.
Whether the Appellant was entitled to the reliefs sought
Appellant awarded ten months' salary (Ksh.271,730) as compensation for unfair termination; notice and leave payments already made; service pay refused due to NSSF membership.
The Court found the Appellant had been paid Ksh.34,248 comprising one month's salary in lieu of notice and nine days' leave pay, evidenced by a petty cash voucher. Compensation under Section 49 was warranted given the unfair and unlawful termination, and ten months' salary was awarded. Service pay was unavailable because the Appellant was an NSSF member, as shown by his April 2018 payslip.
Admissibility of witness statements admitted by consent without the makers adopting them on oath
Admission of defence witness statements by consent in the absence of the witnesses was an illegality, although the point was not raised on appeal.
The Court stated, for the record, that a filed witness statement is not evidence unless adopted on oath by its maker, unlike affidavits. The Civil Procedure Rules do not permit production of witness statements by counsel, by consent or otherwise. Consent cannot oust the law, and the trial court's reliance on the illegally admitted statements was a further illegality. No explanation was given for the witnesses' absence.
Legal principles established
#- A filed witness statement cannot be admitted as evidence by consent of counsel; it becomes evidence only when adopted on oath by the witness.
- Consent by counsel or parties cannot oust the law; reliance on illegally admitted evidence is itself an illegality.
- On a first appeal the court must re-evaluate the evidence and reach its own independent conclusions.
- An employer bears the burden of proving valid reasons and fair procedure for termination; failure to prove the reason renders the termination unfair.
- Warning letters already acted upon as disciplinary measures cannot later be used as a basis for termination.
Court orders
#- 1.Set aside the lower Court's judgment dated 17th June 2021
- 2.Substituted judgment in favour of the Appellant for Ksh.271,730 being ten months' salary as compensation for unfair termination of employment
- 3.Appellant awarded costs of the appeal and of the suit in the Court below
- On appeal from
- Mombasa Chief Magistrate's Court
- Case No. 167 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over a suit originating in the Chief Magistrate's Court; Employment Act No. 11 of 2007 (Sections 41, 43, 45, 49); Employment and Labour Relations Court (Procedure) Rules, 2016
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.
- Wambua v Aga Khan University Hospital (Cause E287 of 2021) [2023] KEELRC 952 (KLR)[2023] KEELRC 952 (KLR)27 Apr 2023followed
Cite this brief
#Cite this brief
Caselaw, "Moki Muithya v Kitui Flour Mills Limited [2021] KEELRC 227 (KLR)", Case Analysis (2021). Mombasa Chief Magistrate's Court Case No. 167 of 2018 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/227/eng@2021-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.