Rodgers Mutinda v Kenya Breweries Limited [2022] KEELRC 633 (KLR)
The bottom line
#A Kenyan court ruled EABL unfairly sacked an employee because it adjourned his disciplinary hearing and never resumed it, awarding modest compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent proved valid and fair reasons for termination
The Respondent genuinely believed the Claimant was involved in unethical practices; substantive justification was established on a balance of probabilities, notwithstanding weaknesses in the evidence on the Senator Keg distribution model
The Court examined the three reasons in the termination letter. It found the Respondent led no evidence that dealings with the stockist related to Senator Keg, and the reconciliation allegation was never put to the Claimant. However, the missing flat-amount Mpesa entries and the Claimant's inability to explain them supported a genuine belief in misconduct, satisfying Section 43(2).
Whether the termination was procedurally fair
The termination was procedurally flawed; the disciplinary hearing was adjourned, never resumed, and the Claimant's witness was not heard
The disciplinary proceedings were adjourned on 21 November 2016 for further investigation which never took place; the committee was never reconvened and the termination followed without conclusion of the hearing. The allegation that the Claimant's witness was not allowed to speak remained uncontroverted, and the Respondent led no evidence that it heard and considered the Claimant's representations, breaching Section 41(2).
Whether a charge not in the notice to show cause could sustain termination
The Distributor Fund reconciliation allegation was not among the charges in the notice to show cause, so the Claimant had no opportunity to respond to it
The termination letter cited Distributor funds reconciliation as a reason, but this was not part of the 7 November 2016 charges. The Claimant had reconciled the debt, and the email triggering the investigation made no such allegation. Relying on the decision in James Ondima Kabesa v Trojan International Limited as urged by the Claimant, terminating on an unprosecuted ground was impermissible.
Entitlement to reliefs
One month's pay in lieu of notice and two months' salary as compensation awarded; severance pay refused
Having found procedural unfairness, the Court invoked Sections 49(1)(c) and 49(4) of the Employment Act. It considered the roughly two years and eight months of the last engagement (about nine years in total), the Claimant's contribution to the termination and his failure to appeal, settling on two months' salary. Severance was refused because the Claimant was an NSSF and pension fund member and was not declared redundant.
Legal principles established
#- For a termination to be lawful it must pass the fairness test of both substantive justification and procedural fairness
- An employer must afford an employee a fair hearing under Section 41 of the Employment Act, including hearing and considering the employee's representations and those of a chosen companion
- An employee who is a member of NSSF is not entitled to service pay, and severance pay is payable only upon redundancy
Court orders
#- 1.One month's pay in lieu of notice
- 2.Equivalent of two months' salary as compensation for the unfair termination
- 3.Costs of the suit to the Claimant
- 4.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute; Articles 159(2)(d) and 48 of the Constitution cited on virtual delivery)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rodgers Mutinda v Kenya Breweries Limited [2022] KEELRC 633 (KLR)", Case Analysis (2022). Not stated in judgment (statement of claim dated 1st August 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/633/eng@2022-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.