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ELRCPartially AllowedELRC Cause (Memorandum of Claim dated 17th January 2017)· [2022] KEELRC 715 (KLR)

David Nzomo Kikuvi v Uzuri Foods Limited [2022] KEELRC 715 (KLR)

Employment and Labour Relations Court
31 January 2022
4,068 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court ruled that dismissing a sick worker without a hearing or valid reason was unfair, awarding him nine months' pay plus notice.

What this practically means

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Executive summary

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The Claimant, employed as a general worker from May 2007 at a gross salary of Kshs. 14,000, was summarily dismissed on 3rd October 2016 when he reported back to work after a period of illness (pneumonia and tuberculosis) and sick leave. He claimed the dismissal was procedurally and substantively unfair and sought a declaration, terminal dues and compensatory damages of Kshs. 210,000. The Respondent maintained that the Claimant absconded duty from 1st September 2016 and was lawfully dismissed for gross misconduct under Section 44para 4 of the Employment Act. The court framed four issues: procedural fairness, substantive fairness, entitlement to reliefs and costs. On procedure, the court found the Claimant was never informed of the grounds or heard before dismissal, contrary to Section 41 of the Employment Act, the Respondent's witness having admitted no show-cause notice was issued; a late assertion in re-examination that the Claimant was heard was dismissed as an afterthought. On substance, the court noted glaring contradictions between the Respondent's pleadings (a dismissal letter dated 18th August 2016 for absence in August) and its evidence (a letter of 30th September 2016 for absence from September), which shifted credibility to the Claimant; the Respondent failed to discharge its burden under Section 43 to prove a fair and valid reason. Judgment was entered for the Claimant: a declaration that the summary dismissal was procedurally and substantively unfair, Kshs. 14,000 in lieu of notice, Kshs. 14,000 for September 2016 salary, Kshs. 126,000 compensation (nine months' gross salary) under Section 49para 1[c], interest at court rates, and costs. The claim for August 2016 salary was refused as it was admitted to have been paid.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

The summary dismissal was procedurally unfair because the Claimant was not heard before dismissal

Reasoning

Section 45 of the Employment Act prohibits unfair termination and Section 41 requires the employer to explain reasons and hear the employee's representations. The Respondent's witness admitted under cross-examination that the Claimant was never called to show cause and that 'there was no need to have his story.' His contrary statement in re-examination was an unexplained afterthought, not supported by pleadings or witness statement.

p. 5
02

Substantive fairness of the summary dismissal

Holding

The dismissal lacked a fair and valid reason; the Respondent's evidence contradicted its pleadings

Reasoning

The Respondent pleaded dismissal by letter dated 18th August 2016 for absence between 1st and 18th August, but its witness testified to a dismissal letter of 30th September 2016 for absence between 1st September and 3rd October. The pleadings showed the Claimant was on doctor-sanctioned sick leave during the pleaded period. The contradictions led the court to find the Claimant truthful, and the Respondent failed to discharge the Section 43 burden of proving a valid reason.

p. 5
03

Entitlement to reliefs

Holding

Claimant entitled to notice pay, September 2016 salary and nine months' compensation; August salary refused

Reasoning

Having found the dismissal unfair, the court awarded one month's salary in lieu of notice under Sections 35 and 36, and salary for September 2016 as the Claimant was off duty with the Respondent's knowledge and a doctor's advice. Compensation of nine months' gross salary under Section 49para 1[c] reflected the Respondent's inequity, the absence of a valid reason, the substantial procedural deviation and the Claimant's length of service. The August salary claim failed on the Claimant's own admission of payment.

p. 6

Legal principles established

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  • Fair procedure under Section 41 of the Employment Act comprises three components: information, hearing and consideration; absence of any renders the termination unfair
  • The employer bears the burden of proving the reason for termination under Section 43 of the Employment Act

Court orders

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  1. 1.A declaration that the summary dismissal was procedurally and substantively unfair
  2. 2.One month's salary in lieu of notice, Kshs. 14,000
  3. 3.Salary for the month of September 2016, Kshs. 14,000
  4. 4.Compensation pursuant to Section 49[1][c] of the Employment Act, Kshs. 126,000
  5. 5.Interest on the awarded sum at Court rates from the date of judgment till full payment
  6. 6.Costs of the suit

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 45[2][c]
  • Employment ActSection 41
  • Employment ActSection 42[2]
  • Employment ActSection 49
  • Employment ActSection 36
  • Employment ActSection 44[4]
  • Employment ActSection 43
  • Employment ActSection 35
  • Employment ActSection 44 [3] and [4]
  • Employment ActSection 49[1][c]

Cases cited (4)

  • Justine Omwoyo v Mount Kenya University
    [2016] eKLR
  • Walter Ogal Anuro vs Teachers Service Commission
    [2013] eKLR
  • George Okello Munyolo vs Unilever Kenya Limited
    [2019] eKLR
  • Daniel Ochieku Achochi vs Dynaplast Limited
    ELRC No. 533 of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 35, 36, 41, 43, 45, 49 invoked)

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 Nzomo Kikuvi v Uzuri Foods Limited [2022] KEELRC 715 (KLR)", Case Analysis (2022). ELRC Cause (Memorandum of Claim dated 17th January 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/715/eng@2022-01-31

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