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ELRCPartially AllowedCause No 1418 of 2017· [2022] KEELRC 523 (KLR)

Lilian Muchungi v Green Belt Movement [2022] KEELRC 523 (KLR)

Employment and Labour Relations Court
28 February 2022
13,807 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~55 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Green Belt Movement unfairly dismissed its employee because it broke its own HR manual's disciplinary rules and failed to prove misconduct.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 28th March 1994 and last serving as a Community Mobilization Officer earning KES 68,750 monthly, was sent on investigatory leave on 23rd February 2017 following allegations of procurement policy violations, and was summarily dismissed on 25th May 2017. She sued for unfair dismissal, seeking Kshs.1,638,000, a certificate of service, costs and interest. The court framed four issues: procedural fairness, substantive fairness, reliefs, and costs. On procedure, the court found the dismissal unfair: the Claimant was given only two days' notice of the disciplinary hearing contrary to the five working days minimum in the Respondent's own Human Resource Manual (which it held forms part of the employment contract); the investigation report and documents to be relied on were never supplied to her; and new grounds were introduced at the hearing and in the dismissal letter without a fresh notice to show cause. On substance, the court held the Respondent failed to prove valid and fair reasons: the evidence showed the Claimant merely verified a cancelled procurement on the Executive Director's instructions, her star accuser exonerated her on the lanterns charge, the USD 747 was accounted for with a surrendered balance, and she had no authority to issue receipts. The court awarded a declaration that the dismissal was procedurally and substantively unfair, compensation of seven months' gross salary (Kshs.477,750) under section 49(1)(c), notice pay of Kshs.68,212, interest thereon, and costs. Payment for the remainder of the contract was refused as double compensation. Judgment dated 28th February 2022, delivered virtually at Nairobi by Ocharo Kebira, Judge.

Key legal issues

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01

Whether the summary dismissal was procedurally fair

Holding

The dismissal was procedurally unfair: the Claimant was given only two days' notice of the hearing contrary to the five working days minimum in the Respondent's own Human Resource Manual, was not supplied the investigation report and other documents to be relied on, and fresh grounds were introduced at the hearing and in the dismissal letter without notice

Reasoning

Section 41 of the Employment Act imposes a mandatory three-component procedure (information, hearing, consideration). The Human Resource Manual forms part of the contract and provided for five days' notice and circulation of documents 24 hours before hearing. The Respondent breached its own manual and natural justice; charges were expanded at the hearing and in the dismissal letter without notice, and the charges lacked specificity.

p. 13
02

Whether the summary dismissal was substantively fair

Holding

The dismissal was substantively unfair; the Respondent failed to prove valid and fair reasons under sections 43 and 45

Reasoning

The evidence showed the Claimant only verified a cancelled procurement on the Executive Director's instructions; her own procurement documents were not executed by her; the Respondent's star witness on the lanterns exonerated her; the USD 747 was accounted for with the balance surrendered; and she had no authority to issue receipts. The Respondent's operational-systemic deficiencies could not be visited on the employee.

p. 16
03

Whether investigatory suspension beyond the contractual 21 days affected procedural fairness

Holding

Investigatory suspension falls outside section 41 and does not inform the section 41 analysis, though a wrongful suspension may ground an independent common law cause of action

Reasoning

The court distinguished the statutory section 41 pre-termination procedure from suspension pending investigations. The three-month suspension exceeded the manual's 21-day limit, but that breach sounds in contract/common law as a separate claim for financial loss, not as a component of procedural fairness under section 41.

p. 10
04

What reliefs were available to the Claimant

Holding

Compensation of seven months' gross salary (Kshs.477,750) under section 49(1)(c) and one month's notice pay (Kshs.68,212) were awarded; payment for the remainder of the contract was refused

Reasoning

Having found the dismissal procedurally and substantively unfair, the court exercised its discretion under section 49(1)(c) considering the Claimant's over twenty years of service, the Respondent's heavy deviation from legal requirements, and her lack of contribution to the dismissal. Notice pay was awarded because the employer could not benefit from its own defaults; contract remainder pay was refused as double compensation.

p. 16

Legal principles established

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  • The procedure under section 41 of the Employment Act is mandatory and has three components - information, hearing and consideration - running from contemplation of action to communication of the decision
  • Stipulations of a Human Resource Manual in a workplace become part of the employment contract terms, and non-compliance is a breach of a contractual term
  • An employee has a right to be given the documents the employer intends to rely on at a disciplinary hearing
  • An employer may not expand the grounds of dismissal at or after the disciplinary hearing without a fresh notice to show cause and an opportunity to respond
  • An employee's misconduct does not inherently justify summary dismissal unless it is so grave that it intimates abandonment of the intention to remain in employment
  • The court determines the fairness of a dismissal on the basis of all the evidential material before the court, not only that placed before the employer at the time of its decision
  • It is an unfair labour practice for the employer to visit upon the employee adverse consequences for losses attributed to deficiencies in the employer's operational policies and systems

Court orders

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  1. 1.A declaration that the dismissal of the Claimant from her employment was procedurally and substantively unfair
  2. 2.Compensation pursuant to section 49(1)(c) of the Employment Act of Kshs.477,750 (seven months' gross salary)
  3. 3.Notice pay of Kshs.68,212
  4. 4.Interest on the compensation and notice pay at court rates from the date of Judgment till full payment
  5. 5.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(3) and (4)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(1)(c)
  • Fair Administrative Actions ActNot specified
  • Constitution of KenyaProvisions relating to fair hearing

Cases cited (14)

  • Lydia Moraa Obara -vs- Tusker Mattresses Limited
    [2021] eKLR
  • Prof. Macha Isunde -vs- Lavington Security Guards Limited
    [2017] eKLR
  • David Wanjau Muhoro -vs- Ol Pajata Ranching Limited
    [2014] eKLR
  • Ruth Adhiambo Apindi -vs- Unilever Kenya Limited
    [2020] eKLR
  • Elinathan G. Kairu -vs- Nakumatt Holdings Limited
    [2017]
  • Saundu Amolo -vs- Principal Namanga Mixed Day Secondary School and 2 others
    [2014] eKLR
  • Rebecca Ann Maina & 2 others -vs- Jomo Kenyatta University of Agriculture & Technology
    [2014] eKLR
  • Joseph Munyao Kayulo -vs- Kenya Teachers Service Commission
  • Evans Kamadi Misango -vs- Barclays Bank of Kenya Limited
    [2015] eKLR
  • British Leyland UK Limited -vs- Swift
    [1981] 1RLR 91
  • Sidumo -vs- Prestenburg Plantinum mines
    [2007] 12 BLLR 1097
  • Laws -vs- London Chronicle Limited
    [1959] 2 ALL L.R. 285
  • Darius Kiseu Mwamburi -vs- Co-operative Bank of Kenya Limited
    [2021] eKLR
  • Grace Gacheri Muriithi vs- Kenya Litrature Bureau
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44, 45, 47(5), 49(1)(c)) over a claim for unfair summary dismissal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "Lilian Muchungi v Green Belt Movement [2022] KEELRC 523 (KLR)", Case Analysis (2022). Cause No 1418 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/523/eng@2022-02-28

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