Joseph Ochieng Mbora v Africa Regalia [2021] KEELRC 764 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant earned Kshs. 20,500/= per month
Yes, both parties' witnesses concurred on the salary figure.
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.
Whether the summary dismissal was lawful
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.
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.
Whether the Claimant is entitled to the reliefs sought
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.
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.
Legal principles established
#- 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
#- 1.A declaration that the dismissal of the Claimant from the service of the Respondent was wrongful and unfair
- 2.One-month salary in lieu of notice at Kshs. 20,500/=
- 3.21 days leave allowance at Kshs. 20,500/=
- 4.Salary for January, 2016 at Kshs. 5,048/=
- 5.1 month's salary as compensation for wrongful dismissal amounting to Kshs. 20,500/=
- 6.Costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007; Articles 41 and 47 of the Constitution invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.