George Mwangi v George Mwangi [2022] KEELRC 223 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of the summary dismissal
Dismissal was substantively unfair; the employer failed to prove absenteeism
The notice cited prolonged absenteeism under Section 44(4)(a) of the Employment Act. RW1 admitted there were no attendance records, and none were produced to prove absence between 2017 and July 2018. The employer, as custodian of employment records under Section 10, bore the burden under Section 43. Having failed to discharge it, the dismissal lacked a valid reason.
Procedural fairness of the summary dismissal
Dismissal was procedurally unfair - no show cause letter, no hearing, no right of appeal communicated
Section 41 of the Employment Act requires notification of allegations and a hearing before summary dismissal. RW1 admitted no show cause letter was issued and no disciplinary hearing records existed. The court aligned procedural fairness with Article 47 of the Constitution, Section 4 of the Fair Administrative Actions Act and the rules of natural justice, and adopted the holdings in the cited authorities.
Quantum of compensation
Maximum 12 months' gross salary awarded, computed on the last payslip figure of Kshs.209,146/=
Having found the dismissal unfair, the court considered Section 49 factors: 13 years of service, denial of both substantive and procedural fairness, absence of proof of the claimant's contribution to the dismissal, the bitter relationship, and no evidence of mitigation. The last payslip (April 2018, Kshs.209,146/=) was preferred over the pleaded Kshs.208,246/=. The award is subject to statutory deductions.
Employment relationship prior to January 2005
Claimant was a consultant from 1993/1995 to 2004, not an employee; employment began 1st January 2005
The claimant admitted he sent fee notes and invoices for the first ten years and was not earning a salary, and that the first contract of employment was dated 16th January 2006. RW1's evidence that he took full-time employment in January 2005 was credible; he could not be both an employee earning salary and a consultant earning fees for the same services. Claims premised on 23 years of employment therefore failed.
Legal principles established
#- An advocate duly instructed may lawfully issue a termination notice on behalf of the employer; issuance by lawyers does not invalidate the notice.
- Under Section 43 of the Employment Act the employer bears the burden of proving the reasons for termination; failure makes the termination unfair.
- Compensation for unfair dismissal is capped at 12 months gross salary under Section 49(1)(c) of the Employment Act.
- A party claiming a liquidated sum must plead and prove particulars; the pleading alone is insufficient.
Court orders
#- 1.A declaration that the dismissal of the Claimant by the Respondent was unfair, wrongful, and unlawful for lack of both substantive and procedural fairness
- 2.Award of Kshs.2,509,752/= being compensation for the wrongful and unlawful dismissal
- 3.The award shall earn interest at court rates from the date of judgment till payment in full
- 4.Costs to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act; Article 47 of the Constitution and the Fair Administrative Actions Act invoked on procedural fairness
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Mwangi v George Mwangi [2022] KEELRC 223 (KLR)", Case Analysis (2022). Employment and Labour Relations Court cause filed by memorandum of claim dated 31st July 2018, amended 5th October 2018 (Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/223/eng@2022-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.