Khamisi Mwandia Kalinga v Modern Coast Express Limited [2021] KEELRC 1275 (KLR)
The bottom line
#Kenya's Employment Court ruled Kenya Bus Service unfairly sacked its employee without a hearing, awarding him salary compensation and his Certificate of Service.
What this practically means
#Executive summary
#Key legal issues
#Whether termination was fair and justified
Termination was unfair; the Respondent adduced no evidence of the alleged offence and the Claimant was not heard
The Respondent alleged the Claimant was dismissed for ferrying unauthorized passengers but gave no evidence of names, date or place of the alleged offence. The Claimant was not issued a show-cause letter or subjected to a disciplinary hearing as required under Section 41. The Court found the termination unfair under Sections 41, 43 and 45 of the Employment Act and awarded 8 months' salary compensation, considering his 8 years of unblemished service and minimal contribution to the termination.
Whether the Claimant was underpaid salary
Prayer declined for lack of proof
The Claimant exhibited the Regulation of Wages [General] [Amendment] Orders of 2013 and 2015, but these did not cover the full pleaded period from 2008. He failed to demonstrate the applicable rates for a Conductor/Pressure Mechanic over 2008-2016, what was actually paid, and the specific underpayment under each legal notice. The Court declined the prayer for underpayment of salary.
Entitlement to Certificate of Service
Certificate to issue notwithstanding alleged breach
The Respondent argued the Claimant was not entitled to a Certificate of Service because he was in breach of its Rules and Regulations. The Court held that breach of an employer's internal rules does not disentitle an employee to a Certificate of Service under Section 51 of the Employment Act, and ordered that it issue.
Proof of employment date and capacity
Claimant's uncontradicted evidence accepted
The Respondent did not give evidence, having had its case closed after walking out when adjournment was refused. In the absence of documentary evidence from the Respondent disproving the Claimant's position, the Court accepted that he was employed in early 2008, and that the pay slips designated him as a Pressure Mechanic notwithstanding the Respondent's plea that he was exclusively a Conductor.
Legal principles established
#- Breach of an employer's rules and regulations does not disentitle an employee to a Certificate of Service under Section 51 of the Employment Act
- Termination without notice, show-cause letter or disciplinary hearing is unfair under Sections 41, 43 and 45 of the Employment Act
Court orders
#- 1.A declaration that the termination was unfair
- 2.Compensation for unfair termination equivalent of 8 months' gross salary at Kshs. 108,848
- 3.1-month salary in lieu of notice at Kshs. 13,606 (total Kshs. 122,454)
- 4.Certificate of Service to issue
- 5.Costs to the Claimant
- 6.Interest at 16% per annum from the date of Judgment till payment in full
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khamisi Mwandia Kalinga v Modern Coast Express Limited [2021] KEELRC 1275 (KLR)", Case Analysis (2021). Employment and Labour Relations Court Claim (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1275/eng@2021-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.