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ELRCPartially AllowedCause No 278 of 2020· [2021] KEELRC 1636 (KLR)

Francis Njeru Zakayo v Chemserve Cleaning Services Limited [2021] KEELRC 1636 (KLR)

Employment and Labour Relations Court
28 May 2021
MOMaureen Onyango
5,681 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Nairobi court awarded a dismissed general manager Kshs.565,000 in unpaid dues but rejected his claims for unfair termination compensation and contempt, because his own admissions justified dismissal.

What this practically means

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Executive summary

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The Claimant, formerly General Manager of the Respondent, filed a claim on 1st July 2020 seeking to restrain disciplinary action, and later sought contempt findings against the Respondent for terminating his employment on 3rd July 2020 despite orders of 2nd July 2020. The parties entered a consent on 21st July 2020 under which the termination letter was withdrawn and disciplinary proceedings were to be conducted on agreed conditions. The disciplinary process concluded in dismissal, prompting an amended claim for withheld salary, allowances, 12 months' pay for unfair termination, leave pay, commission, pension contributions, a Kshs.5 million contempt fine and general damages. The claim was disposed of by pleadings, documents and written submissions. The court framed five issues: contempt, admissibility of the disciplinary hearing transcript, valid reason, fair procedure, and remedies. It found no contempt, holding there were no orders capable of being disobeyed on 21st September 2020, the contempt application was compromised by consent, no notice was given and no officer of the corporate Respondent was named; contempt being quasi-criminal must be proved almost to the criminal standard. The transcript objection was held to be a late technicality. The Claimant's admissions at the disciplinary hearing established valid reasons for dismissal, and procedure under Section 41 of the Employment Act was complied with, his counsel having participated. Unfair termination compensation, general damages and commission were rejected; withheld salary, allowances, leave pay, salary shortfall, car and fuel allowances were awarded. Judgment was entered for the Claimant for Kshs.565,000/= with costs based on the decretal sum and interest from the date of judgment.

Key legal issues

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01

Contempt of court orders

Holding

No contempt found

Reasoning

The alleged orders of 21st September 2020 were only directions for filing pleadings and highlighting; the court record shows no orders restricting the Respondent. The contempt application arising from the 3rd July 2020 termination was compromised by the consent of 21st July 2020. No extracted orders existed, no notice was given, and no officer of the corporate Respondent was named. Contempt being quasi-criminal, it must be proved almost to the criminal standard, which was not met.

p. 6
02

Admissibility of the disciplinary hearing transcript

Holding

Transcript admitted; objection too late

Reasoning

The Respondent should have objected under Rule 14(5) of the ELRC Procedure Rules or at pre-trial. It filed its own minutes of the disciplinary proceedings, showed no prejudice and identified no inaccurate portion of the transcript. The objection was a technicality not affecting the substance of the suit.

p. 7
03

Valid reason for termination

Holding

Valid reasons established

Reasoning

The Claimant admitted at the disciplinary hearing to delaying extension of the Customer Relations Managers' probation, failing to withdraw confidential client contracts and cancel the Bank of Africa facility, issuing two cheques against one LPO, and including ineligible dependants in the medical insurance scheme. These admissions constituted valid reasons for termination.

p. 8
04

Fair procedure under Section 41 Employment Act

Holding

Procedure complied with

Reasoning

The Claimant was heard on 1st and 10th September 2020 in the presence of his counsel, who was allowed to make representations. The Employment Act does not require an independent disciplinary panel; it requires the employee be informed of the grounds and allowed to respond, which occurred.

p. 8

Legal principles established

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  • Elements of civil contempt: clear and unambiguous order, knowledge/notice, breach, and deliberate conduct; contempt is quasi-criminal and must be proved to a standard just below the criminal threshold
  • A corporate body acts through its officers; contempt charges against a company must name the officer and give notice
  • Objections to pleadings/evidence should be raised under Rule 14(5) or at pre-trial; it is too late at submissions stage where the other party cannot remedy the defect
  • The law does not require an employer to constitute a disciplinary panel of persons independent of the entity; Section 41 Employment Act requirements are the benchmark

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent in the total sum of Kshs.565,000/=
  2. 2.Respondent to pay Claimant's costs based on the decretal sum
  3. 3.Interest to accrue from date of judgment
  4. 4.Entitlement to salary withheld during suspension, allowances up to date of dismissal, leave pay for untaken earned leave days, salary shortfall for April 2020, car allowance for March and April 2020, and fuel and car maintenance allowance up to July 2020
  5. 5.Pension contributions claim to be addressed to the pension scheme managers and the Retirement Benefits Authority

Authorities

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Legislation

  • Fair Administrative Action ActSection 9(4)
  • Evidence ActSection 106B; Section 107; Part VII
  • Employment and Labour Relations Court ActSection 20
  • Employment and Labour Relations Court (Procedure) RulesRules 14(5), 15(1), 21, 25
  • Employment ActSection 41
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenya, 2010Articles 159(2)(d) and 48

Cases cited (4)

  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Teachers Service Commission v Kenya National Union of Teachers & 2 others
    [2013] eKLR
  • Mengich t/a Mengich & Co Advocates & Another v Joseph Mabwai & 10 Others
    [2018] eKLR
  • James Mangeli Musoo v Ezeetec Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act; Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Francis Njeru Zakayo v Chemserve Cleaning Services Limited [2021] KEELRC 1636 (KLR)", Case Analysis (2021). Cause No 278 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1636/eng@2021-05-28

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