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ELRCPartially Allowed· [2022] KEELRC 280 (KLR)

Anne Karoki v Kenya Hospital Association t/a The Nairobi [2022] KEELRC 280 (KLR)

Employment and Labour Relations Court
21 April 2022
MNMATHEWS N. NDUMA
2,361 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a show-cause letter alone doesn't justify firing an employee — a real disciplinary hearing must actually happen, or the dismissal becomes unlawful.

What this practically means

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Executive summary

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The claimant, employed as Procurement Controller in February 2016 and elevated to Acting Head of Procurement and Stores in March 2017, was issued a show cause letter in February 2018 over the award of a CCTV tender to Servtel Communications Limited instead of the recommended bidder. She responded explaining an honest mistake occasioned by urgency from the Chief Security Officer's office, attended a scheduled disciplinary hearing on 28th February 2018 at which no hearing took place, and received a termination letter dated 1st March 2018. Her appeal to the CEO went unanswered. The respondent's Human Resource Officer maintained that a disciplinary hearing occurred, producing minutes of an alleged hearing on 1st March 2018, but the court found this evidence false and incapable of belief, noting the termination letter itself referred to a hearing on 28th February 2018. Applying Sections 41, 43, 45 and 47(5) of the Employment Act, the court held the onus lay on the employer to prove valid reason and fair procedure, and that a show cause response does not equal a fair hearing. The termination was found unfair and unlawful. The court awarded five months' salary (Kshs 1,158,410) as compensation under Section 49 and one month's notice pay (Kshs 231,682), with interest at court rates from the date of judgment and costs of the suit. General damages and twelve months' compensation were not granted.

Key legal issues

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01

Whether a disciplinary hearing was held on 28th February 2018

Holding

No disciplinary hearing was held; the respondent's HR officer tendered false documentary evidence of a hearing allegedly held on 1st March 2018, the date of the termination letter

Reasoning

The claimant was invited by memo dated 26th February 2018 to a hearing on 28th February 2018 but none took place. The respondent produced minutes of an alleged hearing on 1st March 2018 attended by persons excluding the HR officer, yet the termination letter dated 1st March 2018 referred to a hearing on 28th February 2018. The court found the respondent adduced no evidence that the hearing was postponed, disbelieved the respondent's evidence, and held the respondent failed to establish a valid reason following fair procedure.

p. 3
02

Whether the termination was fair and lawful

Holding

The termination violated Sections 41, 43 and 45 of the Employment Act and was unfair and unlawful

Reasoning

The respondent failed to prove a valid reason and fair procedure. The claimant's response to the show cause letter did not amount to admission. The respondent did not counter testimony that the Chief Security Officer's office rushed the documents, that other signatories were not disciplined, or demonstrate substantial loss. Compensation followed under Section 49(1)(c) and (4).

p. 3

Legal principles established

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  • Once an employee claims wrongful termination, the burden shifts to the employer to demonstrate valid reason and fair procedure
  • A response to a show cause letter is not equivalent to a fair hearing; the employer must accord an oral hearing under Section 41 unless the offence is admitted or the right waived

Court orders

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  1. 1.Kshs 1,158,410 in compensation (five months' salary) for unlawful and unfair termination
  2. 2.Kshs 231,682 notice pay (one month's salary in lieu of notice)
  3. 3.Total award of Kshs 1,390,092
  4. 4.Interest at Court rates from date of judgment till payment in full
  5. 5.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment ActSections 41, 43(1) and (2), 45, 47(5), 49(1)(c) and (4)
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (2)

  • Mary Chemweno Kiptui –vs- Kenya Pipeline Company Limited
    [2014] eKLR
  • Moses Gachihi Wathira –vs- SGS Kenya Limited
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute under the Employment Act

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, "Anne Karoki v Kenya Hospital Association t/a The Nairobi [2022] KEELRC 280 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/280/eng@2022-04-21

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