David Maibei Kimetto Tangut v Pelican Haulage Contractors Limited [2022] KEELRC 703 (KLR)
The bottom line
#A Kenyan court ruled a driver's dismissal unfair because his employer never held a proper hearing, awarding him pay and damages despite alleged misconduct.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was procedurally fair under Section 41 of the Employment Act
The termination was procedurally unfair because the Claimant was not notified of his specific wrongdoing, was not asked to give his explanation in the presence of a witness or shop floor steward, and the meetings relied on were general meetings rather than a disciplinary hearing convened for him
Although the Respondent issued a warning letter and suspension letter and pointed to minutes of two meetings, the court found these were general meetings with several drivers about organisational matters. Section 41(1) requires the employer to explain the reasons in a language the employee understands and entitle him to have a fellow employee or union representative present. This was not done, so the procedure was flawed.
What remedies flow from the procedurally unfair termination
The Claimant was awarded one month's salary in lieu of notice, 20 days' salary for February 2015, and general damages of two months' salary (Kshs.50,000/=), but overtime, off days and public holiday claims were declined for lack of proof
The court entered judgment for the Claimant on the procedural fairness claim and assessed remedies item by item. Claims requiring proof by the Claimant (overtime, off days, public holidays) failed for want of evidence, while notice pay, salary for days worked and modest general damages reflecting the 9 months of service were granted, with costs and interest.
Legal principles established
#- Summary dismissal even for gross misconduct must not be resorted to without complying with procedural fairness and natural justice under Section 41 of the Employment Act
- For a termination to pass the fairness test there must be both substantive justification and procedural fairness
- Warning letters alone do not satisfy Section 41 unless connected to a disciplinary hearing at which the employee is heard in the presence of a fellow employee or union representative
Court orders
#- 1.One month salary in lieu of notice of Kshs.25,000/=
- 2.20 days worked in February 2015 of Kshs.16,667/=
- 3.General damages of two months' salary, Kshs.50,000/=, the Claimant having worked 9 months
- 4.Costs of the suit awarded to the Claimant
- 5.Interest at court rates from date of judgment till full payment
- 6.Any money owed by the Claimant to the company or already paid to him to be deducted
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Maibei Kimetto Tangut v Pelican Haulage Contractors Limited [2022] KEELRC 703 (KLR)", Case Analysis (2022). Not stated in the judgment (memorandum of claim dated 12th June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/703/eng@2022-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.