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ELRCPartially AllowedCause No 960 of 2016· [2021] KEELRC 764 (KLR)

Joseph Ochieng Mbora v Africa Regalia [2021] KEELRC 764 (KLR)

Employment and Labour Relations Court
14 October 2021
2,836 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that even when an employee's misconduct justifies dismissal, employers must still hold a fair hearing or the dismissal becomes unfair.

What this practically means

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Executive summary

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The Claimant, a tailor employed by the Respondent from October 2005 at a final monthly salary of Kshs. 20,500/=, was summarily dismissed on 22nd January 2016 by a letter citing that he worked for the Respondent's competition without permission, amounting to sabotage that caused the Respondent losses. He claimed he was never issued a notice to show cause nor accorded a hearing. The Respondent, through its proprietor, asserted that the Claimant worked for its clients behind its back, took over its customers and a roadside shop, causing it to close down. The court, on joint issues, found the salary figure uncontroverted. On legality, it held that although the alleged conduct could have constituted valid grounds for dismissal, the Respondent failed to adhere to Section 41 of the Employment Act by not hearing the Claimant's representations before dismissal, contrary also to Sections 43 and 45 and Articles 41 and 47 of the Constitution, rendering the dismissal unprocedural and unfair. On remedies, the court awarded one month's salary in lieu of notice, 21 days' leave pay (the employer having produced no leave records), and Kshs. 5,048/= for January 2016 (22 days' pay less a Kshs. 10,000/= advance). Compensation under Section 49 was fixed at one month's salary rather than the twelve sought, because the Claimant's own conduct largely contributed to the dismissal and the remedies are compensatory, not punitive. Judgment was entered accordingly with costs of the suit to the Claimant.

Key legal issues

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01

Whether the Claimant earned Kshs. 20,500/= per month

Holding

Yes, both parties' witnesses concurred on the salary figure.

Reasoning

Although listed as an issue for determination by both parties, the Claimant and the Respondent's witness testified in agreement that the salary at the time of dismissal was Kshs. 20,500/=. The court saw no need for further analysis on this uncontested point.

p. 3
02

Whether the summary dismissal was lawful

Holding

No - the dismissal was unprocedural and unfair under Sections 41, 43 and 45 of the Employment Act and Articles 41 and 47 of the Constitution.

Reasoning

The Respondent did not give the Claimant a notice to show cause or a hearing before dismissal, and produced no evidence of any disciplinary hearing. This violated Section 41(2) of the Employment Act requiring the employer to hear and consider representations on grounds of misconduct, and the rules of natural justice. Although the alleged conduct (working for the competition) could have been a valid reason, procedural fairness was not observed.

p. 4
03

Whether the Claimant is entitled to the reliefs sought

Holding

Entitled to notice pay, 21 days' leave pay, January 2016 salary less an advance, but only one month's salary as compensation rather than twelve.

Reasoning

No notice was given or paid contrary to Section 35; the employer bears the obligation to keep leave records and none were produced, so the 21 days' leave pay is awarded; January 2016 salary is computed for 22 days less a Kshs. 10,000 advance, yielding Kshs. 5,048/=. For compensation, the court weighs the Claimant's contribution to his dismissal, his long service of about ten and a half years, the closure of the Respondent's business, and the compensatory (not punitive) purpose of Section 49 remedies.

p. 5

Legal principles established

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  • An employer must prove both valid reasons and adherence to the procedural fairness requirements of Section 41 of the Employment Act; failure to hear the employee renders a dismissal unprocedural and unfair even if the grounds could have justified dismissal.
  • Suspicion alone is not sufficient reason for termination of employment.
  • Remedies under Section 49 of the Employment Act are meant to compensate the employee and not to punish the employer.

Court orders

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  1. 1.A declaration that the dismissal of the Claimant from the service of the Respondent was wrongful and unfair
  2. 2.One-month salary in lieu of notice at Kshs. 20,500/=
  3. 3.21 days leave allowance at Kshs. 20,500/=
  4. 4.Salary for January, 2016 at Kshs. 5,048/=
  5. 5.1 month's salary as compensation for wrongful dismissal amounting to Kshs. 20,500/=
  6. 6.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Sections 41, 43, 45
  • Employment Act, 2007Section 35
  • Employment Act, 2007Sections 49, 49(1), 49(3), 49(4)
  • Employment Act, 2007Section 44(3) and (4)
  • Constitution of Kenya, 2010Articles 41 and 47

Cases cited (9)

  • Joan Chebichi Sawe v R
    Nairobi HCCA No. 2 of R002
  • Amos Kitavi Kivite v Kenya Revenue Authority
    (2020) eKLR
  • Loice Otieno V Kenya Commercial Bank Ltd
    [2013] eKLR
  • Judicial Service Commission v Gladys Boss Shollei & another
    [2014] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • David Gichana Omuya v Mombasa Maize Millers Limited
    [2014] eKLR
  • Kenfreight (E.A) Limited v Benson K. Nguti
    [2019] eKLR
  • Jephtar & Sons Construction & Engineering Works Ltd vs. The Attorney General
    HCT-00-CV-CS-0699-2006
  • Mosisili vs. Editor Miller Newspapers
    CIV/T/275/2001
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007; Articles 41 and 47 of the Constitution invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Ochieng Mbora v Africa Regalia [2021] KEELRC 764 (KLR)", Case Analysis (2021). Cause No 960 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/764/eng@2021-10-14

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