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ELRCPartially AllowedCause No 112 of 2017· [2022] KEELRC 417 (KLR)

Felix Mwalimu v Nairobi Safari Club [2022] KEELRC 417 (KLR)

Employment and Labour Relations Court
24 March 2022
4,412 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a Chief Engineer's dismissal unfair because he was never given a hearing, awarding him Kshs.1,231,000 despite a valid reason existing.

What this practically means

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Executive summary

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The Claimant, formerly the Respondent's Chief Engineer, sued for wrongful and unfair termination following his summary dismissal on 8th December 2016, a day after receiving a warning letter. He sought a declaration of unfair termination, unpaid December 2016 salary, one month's notice pay, unpaid July and August 2015 salary, twelve months' compensation, accrued leave days, severance pay, reinstatement and costs. The Respondent maintained that the dismissal was for failure to perform duties and obey lawful orders, citing the uncompleted Langata House renovation, uncleared debris at the basement and staff entrance, and delays in hotel projects. The Court framed two issues: the lawfulness of the dismissal and entitlement to remedies. Applying sections 41, 43, 44, 45 and 47(5) of the Employment Act, the Court found a valid and fair reason existed, since the letter of appointment required the Claimant to perform duties as directed by Management. However, on procedure, RW1 admitted the Claimant was not heard, faced no disciplinary hearing, and the Respondent ignored its own grievance mechanism; the summary dismissal was therefore unlawful for want of procedural propriety. The Court awarded the admitted dues (December salary, notice pay, 40 accrued leave days) and two months' salary as compensation, but declined the July/August 2015 claim, severance pay (Claimant being an NSSF member and not redundant), and reinstatement as overtaken by events. Judgment of Kshs.1,231,000 plus costs and interest was entered for the Claimant.

Key legal issues

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01

Whether the Respondent had a valid and fair reason to dismiss the Claimant

Holding

The Court found a valid and fair reason existed on a balance of probabilities, since the letter of appointment required the Claimant to discharge duties as directed by Management or the Head of Department

Reasoning

The termination letter cited poor workmanship on the Langata House project, failure to clear debris and garbage, and delay in hotel projects. Only the debris issue was put to the Claimant. Lacking a produced job description, the Court relied on paragraph II of the letter of appointment, which made the Claimant's duties those directed by Management. RW1 confirmed the issue had arisen previously and the Claimant had not cleared the debris. Section 43(2) directs the Court to the employer's genuine belief at the time of termination.

p. 5
02

Whether the termination followed a fair procedure under sections 41 and 45(2)(c)

Holding

The summary dismissal was unlawful for want of procedural propriety: the Claimant was not heard, was not taken through a disciplinary hearing, and the internal grievance mechanism was not invoked

Reasoning

RW1 confirmed on cross-examination that the Claimant was not accorded an opportunity to be heard, no meeting preceded the termination, and the Respondent neither followed its own Human Resource Manual grievance mechanism nor the statutory procedure. The Claimant, entitled to one month's notice, was dismissed less than 24 hours after a warning letter. Two of the three termination reasons had not been put to him in a notice to show cause.

p. 6
03

What remedies flow from the unlawful termination

Holding

Declaration of unlawful termination, admitted dues (December salary, notice pay, leave days), and compensation capped at two months' salary under section 49; severance and reinstatement refused

Reasoning

Admitted figures (Kshs.58,000 December salary, Kshs.220,000 notice pay, Kshs.513,000 leave days) were awarded on the strength of RW1's admissions. Compensation under section 49 was discretionary; the Court weighed the one-year service, the warning, failure to appeal, the Claimant's wish to remain employed and his contribution to the termination, settling on two months' gross salary. Reinstatement was overtaken by events after more than four years.

p. 6

Legal principles established

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  • A termination of employment is unfair where the employer fails to prove a valid and fair reason and that the termination followed fair procedure
  • Even where a fair reason exists, termination through a procedure that does not conform with statute amounts to unfair termination
  • An employee who is a member of NSSF is not entitled to service pay, and severance pay is only available on redundancy

Court orders

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  1. 1.A declaration that the Claimant's termination was unlawful
  2. 2.Kshs.58,000 unpaid salary for 8 days worked in December 2016
  3. 3.Kshs.220,000 one month salary in lieu of notice
  4. 4.Kshs.440,000 being equivalent of two months' salary as compensation
  5. 5.Kshs.513,000 untaken 40 leave days
  6. 6.Total award of Kshs.1,231,000
  7. 7.Costs of the suit to the Claimant
  8. 8.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007sections 35(5) and (6), 39(4), 40(1)(f), 41, 43, 43(1)(2), 44, 45, 45(2), 47(5), 49(1), 49(3), 50
  • Employment and Labour Relations Court Act, 2011section 12(3)(vii)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Actsection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d) and 48

Cases cited (9)

  • Mary Chemweno Kiptoi v Kenya Pipeline Co. Ltd
    [2014] eKLR
  • Jaffar Mohamed v Ready Consultancy Co. Ltd.
    [2015] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Pius Machatu Isindu v Lavington Security Guards Ltd
    [2015] eKLR
  • Naima Khamis v Oxford University Press [EA] Ltd
    [2017] eKLR
  • Kenfreight (EA) Ltd v Benson K. Nguti
    [2010] eKLR
  • Standard Group Limited v Jenny Luesby
    [2018] eKLR
  • Hassanath Wanjiku v Vanela House of Coffees
    [2018] eKLR
  • Kenya Airways Ltd v Aviation and Allied Workers Union Kenya & 3 Others
    [2014] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court; Employment and Labour Relations Court Act, 2011

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, "Felix Mwalimu v Nairobi Safari Club [2022] KEELRC 417 (KLR)", Case Analysis (2022). Cause No 112 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/417/eng@2022-03-24

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