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ELRCPartially AllowedNot stated in the judgment (memorandum of claim dated 12th June 2015)· [2022] KEELRC 703 (KLR)

David Maibei Kimetto Tangut v Pelican Haulage Contractors Limited [2022] KEELRC 703 (KLR)

Employment and Labour Relations Court
10 February 2022
1,748 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 driver's dismissal unfair because his employer never held a proper hearing, awarding him pay and damages despite alleged misconduct.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a driver from June 2012 at a last salary of Kshs.25,000/= per month, was summarily dismissed on 20th February 2015 over allegations of high fuel consumption, after a warning letter of 24th September 2014 and a suspension letter of 28th November 2014. He claimed the dismissal was without a hearing and sought terminal benefits and compensatory damages totalling Kshs.903,627/=, with interest and costs. The Respondent maintained the dismissal was for gross misconduct, that warning letters were issued, and that the Claimant attended and signed minutes of meetings on 9th January 2015 and 26th January 2015, and disputed the overtime, off days, public holiday and leave claims. The court framed two issues: whether the Claimant made a case for unlawful termination and whether he was entitled to the remedies sought. Holding that Section 41 of the Employment Act requires an employer to explain the reasons for termination to the employee in a language he understands and to allow a fellow employee or shop floor union representative to be present, the court found the meetings relied on were general meetings of several drivers, not a disciplinary hearing specifically convened for the Claimant, and that the warning letters were not connected to such a hearing. Applying authorities on substantive justification and procedural fairness, the court found the termination procedurally unfair. On remedies, it awarded one month's salary in lieu of notice (Kshs.25,000/=), 20 days' salary for February 2015 (Kshs.16,667/=) and general damages of two months' salary (Kshs.50,000/=), but declined overtime, off days and public holiday claims for want of proof, awarding a total of Kshs.91,667/= with costs and interest from the date of judgment, subject to deduction of any monies owed by or paid to the Claimant.

Key legal issues

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01

Whether the termination of the Claimant's employment was procedurally fair under Section 41 of the Employment Act

Holding

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

Reasoning

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.

p. 2
02

What remedies flow from the procedurally unfair termination

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.One month salary in lieu of notice of Kshs.25,000/=
  2. 2.20 days worked in February 2015 of Kshs.16,667/=
  3. 3.General damages of two months' salary, Kshs.50,000/=, the Claimant having worked 9 months
  4. 4.Costs of the suit awarded to the Claimant
  5. 5.Interest at court rates from date of judgment till full payment
  6. 6.Any money owed by the Claimant to the company or already paid to him to be deducted

Authorities

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Legislation

  • Employment ActSection 41(1) and 41(2)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (3)

  • LOICE OTIENO VS KENYA COMMERCIAL BANK LIMITED
    Cause No.1050 of 2011
  • KENFREIGHT E.A LIMITED VS BENSON NGULI
    (2016) eKLR
  • WALTER OGAL VS TEACHERS SERVICE COMMISSION
    Cause No.955 of 2011
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007

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, "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.