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ELRCPartially AllowedCause No. 185 of 2017· [2022] KEELRC 413 (KLR)

Patrick Barasa v Western Express Coach Limited [2022] KEELRC 413 (KLR)

Employment & Labour Relations Court
18 March 2022
AMAnna Ngibuini Mwaure
3,283 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan bus driver won Kshs.150,000 after his employer failed to prove misconduct or give him a hearing before firing him.

What this practically means

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Executive summary

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Patrick Barasa, employed by Western Express Coach Limited as a bus driver from December 2014 on a gross salary of Kshs.30,000, was terminated by a letter dated 1st December 2016 on the ground that he had tampered with the speed governor of bus KCG 270N. He claimed he had merely reported the faulty governor to the manager, was never given a hearing, and that the letter was back-dated. He sued for notice pay, unpaid December 2016 salary, unpaid leave, severance/service pay and twelve months' compensation for unfair dismissal. The Respondent alleged gross misconduct and defended the termination as fair, alternatively as an exercise of a contractual notice clause. The Respondent called no witness. The Court framed two issues: whether the termination was unlawful and whether remedies were due. Applying sections 41, 43, 45 and 47(5) of the Employment Act and the Court of Appeal's decision in Pius Machafu Isindu v Lavington Security Guards Limited, the Court held the employer bore the burden of justifying the termination and proving fair procedure. The letter's failure to disclose the source of the tampering report, the Claimant's unrebutted testimony, the absence of any hearing, and the Respondent's evidence-free contractual-notice argument (raised only in submissions) led the Court to find both substantive and procedural unfairness. The Court awarded Kshs.30,000 notice pay, Kshs.30,000 unpaid December 2016 salary, Kshs.30,000 unpaid leave and Kshs.60,000 compensation, totalling Kshs.150,000, with interest on the balance after any legitimate deduction of Kshs.30,000 owed, plus costs and a certificate of service. Severance/service pay was disallowed for lack of evidential basis.

Key legal issues

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01

Whether the termination of the Claimant was unfair and unlawful

Holding

The termination was both substantively and procedurally unfair; the employer failed to prove the reason (tampering with the speed governor) and gave no hearing under section 41

Reasoning

The termination letter cited a report alleging interference with the speed governor but did not disclose the source of the report or how it arose. The Claimant denied tampering, explaining he was a driver, not a mechanic, and that others used the bus. The Respondent led no evidence, and its contractual-notice argument raised only in submissions was not pleaded or put to the witness. No hearing or notification was demonstrated; the letter was back-dated. Substantive and procedural fairness both failed.

p. 4
02

Whether submissions alone can sustain a finding against a party

Holding

No - allegations in pleadings and submissions must be proved by evidence before a decision can rest on them

Reasoning

The Respondent argued in submissions that termination was under a contractual clause allowing one month's notice, but this appeared nowhere in the termination letter or memorandum of response, no evidence was led on it, and it was not put to the Claimant in cross-examination. Relying on Madan J in CMC Aviation Ltd v Cruise Air Ltd, the Court held that unproved averments are not evidence and decisions cannot be founded on them.

p. 3
03

What remedies the Claimant is entitled to

Holding

Notice pay, unpaid December 2016 salary, unpaid leave and two months' gross salary as compensation under section 49(1); severance/service pay disallowed

Reasoning

The Court accepted the Claimant's sworn testimony of a gross salary of Kshs.30,000 in the absence of the Respondent's evidence, awarding notice pay and the unpaid December salary. Leave entitlement was awarded because the Respondent bore the burden of proving leave was given and produced no records. Compensation was fixed at two years' gross salary given the short service, the Claimant's non-contribution to the termination and the Respondent's conduct, but expressed as Kshs.60,000 (two months' pay).

p. 4

Legal principles established

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  • An employer must prove both valid reason and fair procedure for termination; termination requires substantive and procedural compliance under sections 43, 45, 47(5) and 41 of the Employment Act
  • Failure to accord an employee a hearing before termination breaches section 41 and renders the termination procedurally unfair
  • Submissions cannot found a finding of fact without evidence; averments in pleadings must be proved before a decision can rest on them

Court orders

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  1. 1.Judgment entered in favour of the Claimant against the Respondent in a total of Kshs.150,000/= (Kshs.30,000 in lieu of notice; Kshs.30,000 unpaid salary for December 2016; Kshs.30,000 unpaid leave; Kshs.60,000 compensation for wrongful termination)
  2. 2.If the Claimant legitimately owes the Respondent Kshs.30,000/=, the same to be deducted from the sum total and the balance paid to him together with interest at court rates from the date of judgment till final payment
  3. 3.Costs awarded to the Claimant
  4. 4.Certificate of service to be issued to the Claimant within 30 days from the date of judgment

Authorities

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Legislation

  • Employment Actsection 28
  • Employment Actsection 35
  • Employment Actsection 36
  • Employment Actsections 41 and 45
  • Employment Actsection 42
  • Employment Actsection 43
  • Employment Actsection 44
  • Employment Actsection 47(1)(5)
  • Employment Actsection 49(1)
  • Evidence Actsection 3 (definition of 'evidence')
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (6)

  • Donald Odeke versus Fidelity Security Ltd
    (2012) eKLR
  • Kenya Plantation & Agriculture Workers Union versus Sotik Highlands Tea Estate Limited
    (2016) eKLR
  • DK Marete versus Teachers Service Commision
    Cause No. 379 of 2009
  • CMC Aviation Limited versus Mohammed Noor
    Civil Appeal No. 199
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • CMC Aviation Ltd versus Cruise Air Ltd
    Civil Application Nairobi No 12 (1)(1978)
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment & Labour Relations Court under Article 162(2) of the Constitution (as the court seized of the employment dispute); judgment delivered under Article 159(2)(d) and Article 48 of the Constitution and Section 1B of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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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, "Patrick Barasa v Western Express Coach Limited [2022] KEELRC 413 (KLR)", Case Analysis (2022). Cause No. 185 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/413/eng@2022-03-18

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