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ELRCPartially AllowedCause No 1435 of 2016· [2022] KEELRC 905 (KLR)

Griffins Wekesa v Rentokil Initial (K) Ltd [2022] KEELRC 905 (KLR)

Employment and Labour Relations Court of Kenya
28 January 2022
4,147 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 confirmed a dismissal had a valid reason but was still unfair because the employee got under three hours to respond to the allegations.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a Quality Assurance Technician from 3 December 2014, was dismissed on 23 October 2015 after being found at the premises of the respondent's client, Solphia Kenya Limited, in the company of Mr Peter Mutinda, an alleged competitor's employee, while assigned to duty at Eka Hotel. The claimant denied soliciting business, contended he was on a lunch break, disputed the disciplinary minutes as fabricated, and alleged he was locked in a chemical store and detained by police without charge. The respondent maintained the dismissal was for gross misconduct - breach of its conflict of interest and business protection policies - and that the claimant was heard and paid his dues. The court framed two issues: whether the termination was unfair and unlawful, and what reliefs avail. On substance, it found the respondent genuinely believed the claimant had taken a competitor to solicit business, satisfying sections 43 and 45 of the Employment Act on a balance of probability. On procedure, however, the claimant had less than three hours to respond to the charge sheet and appeared at a hearing barely 24 hours after the incident; the minutes were sketchy. Following Patrick Abuya, the court held the termination procedurally unfair. It awarded one month's notice pay (Kshs 18,000) and three months' gross salary as compensation (Kshs 54,000), with interest, and a certificate of service. Claims for unpaid salary and service pay were declined. For failing to comply with filing directions, the claimant lost costs; each party bears its own costs.

Key legal issues

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01

Whether there was substantive justification for the termination

Holding

Yes - the respondent genuinely believed the claimant had taken a competitor to solicit business from its client, a valid reason related to conduct and breach of trust

Reasoning

The claimant did not deny being at Solphia Kenya Limited with Mr Mutinda, whose business competed with the respondent's. Clause 11 of the contract prohibited conflict of interest. Applying sections 43(2) and 45(2) of the Employment Act, the reason need only be one the employer genuinely believed to exist, proved on a balance of probability. The court found the respondent had a genuine reason for termination.

p. 4
02

Whether the claimant was accorded procedural fairness

Holding

No - the short notice to respond (less than 3 hours) and rushed hearing the following morning denied the claimant procedural fairness, rendering the termination unfair

Reasoning

Section 41(1) requires notification of allegations and an opportunity to make representations. The claimant had less than 3 hours to respond, and the hearing was held barely 24 hours after the incident. The disciplinary minutes were sketchy and failed to clearly articulate the claimant's defence. Following Patrick Abuya, the court held that reasonable notice and time to prepare are essential to fair procedure.

p. 4
03

What reliefs avail to the claimant

Holding

One month's notice pay and 3 months' gross salary as compensation; salary claim declined as paid; service pay declined due to NSSF contributions; certificate of service awarded

Reasoning

Having found the termination procedurally unfair, the court awarded notice pay and, considering the claimant's short service of barely a year, compensatory damages of three months' gross salary rather than the 12 months sought. The salary claim failed on admission of receipt, and service pay failed under section 35(6)(d) because the claimant contributed to NSSF. A certificate of service was mandatory under section 51(1).

p. 5

Legal principles established

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  • A termination is unfair unless the employer proves both substantive justification and procedural fairness
  • Reasons for termination are those the employer genuinely believed to exist at the time, proved on a balance of probability
  • Adequate and reasonable time to respond to allegations is an essential element of procedural fairness; short notice renders a hearing unfair
  • The employment relationship is founded on mutual trust and confidence

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent for one month's salary in lieu of notice (Kshs 18,000.00) and compensation equivalent to 3 months' gross salary (Kshs 54,000.00), total Kshs 72,000.00
  2. 2.Award to attract interest at court rates from the date of Judgment until payment in full
  3. 3.Each party to bear its own costs
  4. 4.Claimant entitled to a Certificate of Service pursuant to section 51(1) of the Employment Act

Authorities

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Legislation

  • Employment Actsections 35(6)(d), 41(1), 43(1), 43(2), 45(2)(a) and (b), 45(2)(c), 45(4)(b), 47(5), 51(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (6)

  • Kenya Power & Lighting Company Limited vs Aggrey Lukorito Wasike
    (2017)
  • Lawrence Onyango Oduori v Kenya Commercial Bank Limited
    [2014] eKLR
  • Kenya Revenue Authority vs Reuwel Waithaka Gitahi & 2 Others
    [2019] eKLR
  • Bamburi Cement Limited vs William Kilonzi
    [2016] eKLR
  • Walter Ogal Anuro vs Teachers Service Commission
    [2013] eKLR
  • Patrick Abuya vs Institute of Certified Public Accountants of Kenya (ICPAK) & another
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction 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, "Griffins Wekesa v Rentokil Initial (K) Ltd [2022] KEELRC 905 (KLR)", Case Analysis (2022). Cause No 1435 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/905/eng@2022-01-28

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