Boniface Mukohe Ismond v Metal Cans and Closure Kenya Limited & another [2021] KEELRC 239 (KLR)
The bottom line
#A Kenyan court ruled a security guard's dismissal without notice or a hearing was unfair, ordering the company to pay him over Ksh.98,000 despite its outsourcing defence.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination for poor performance
Termination without notice, hearing or an opportunity to be heard was wrongful and unlawful contrary to sections 41 and 45 of the Employment Act
Section 41(1) requires an employer, before terminating on grounds of misconduct, poor performance or physical incapacity, to explain the reasons to the employee in a language he understands and allow a fellow employee or union representative present. The claimant was barred from work the day after a warning over a vehicle scratch, with no hearing. No evidence was called by the respondents. Termination was therefore substantively and procedurally unfair.
Employer liability despite alleged labour outsourcing
The 1st respondent remained the principal employer and is liable; the outsourcing claim was left bare and unsupported by any agreement or evidence
The 1st respondent alleged it procured the 2nd respondent, a personnel outsourcing company, to manage human resources. No agreement was attached and no evidence was called. The court held employment was with the 1st respondent as principal employer, and any changes to employment particulars required written communication and the employee's consent under sections 10(5) and 13 of the Employment Act.
Entitlement to remedies
Claimant entitled to notice pay under section 35, compensation under section 49, and leave pay under section 28
Having found unfair termination, the court awarded notice pay of one month's wage (Ksh.21,000), compensation of three months' wages (Ksh.63,000) as appropriate in the circumstances, and leave pay for one year of Ksh.14,700 pursuant to section 28 of the Employment Act, with interest on non-payment within 30 days.
Legal principles established
#- Where the due process outlined under section 41 of the Employment Act, 2007 is not followed, the subsequent termination of employment is unlawful
- The employer of record remains liable notwithstanding alleged labour outsourcing; changes to employment particulars must be communicated in writing with the employee's consent
- A poor performing employee must be issued with notice and allowed to give his defence
Court orders
#- 1.Judgment entered for the claimant against the 1st respondent
- 2.Compensation of Ksh.63,000
- 3.Notice pay of Ksh.21,000
- 4.Leave pay of Ksh.14,700
- 5.Dues payable within 30 days, after which interest shall accrue from the date due until paid in full
- 6.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Boniface Mukohe Ismond v Metal Cans and Closure Kenya Limited & another [2021] KEELRC 239 (KLR)", Case Analysis (2021). Cause No. 1430 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/239/eng@2021-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.