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ELRCPartially AllowedCause No 1508 of 2017· [2022] KEELRC 1031 (KLR)

Joshua Motari Mongare v Madison Insurance Co Ltd & another [2022] KEELRC 1031 (KLR)

Employment and Labour Relations Court
21 January 2022
SRStella Rutto
3,747 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 that firing an employee without a disciplinary hearing, and secretly obtaining his Mpesa records, was unlawful and violated his privacy.

What this practically means

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Executive summary

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The claimant, employed by the 1st respondent as a claims analyst from October 2013, was suspended on 7 February 2017 over allegations that he solicited kickbacks from the respondent's service providers. He was never subjected to a disciplinary hearing; instead, the 1st respondent outsourced investigations to the 2nd respondent and relied on the resulting report to terminate his employment. The court found that the employer failed to prove substantive justification under sections 43(1) and 45(2) of the Employment Act because no service provider gave statements or testified, the investigator did not testify, and the allegations were vague and unparticularised. Procedurally, the employer flouted section 41 by failing to accord the claimant a hearing, wrongly treating the external investigation as a substitute for the statutory process. The court further found that both respondents violated the claimant's constitutional right to privacy under Article 31(c) by accessing and producing his Mpesa statements without his consent or demonstrated authority. The claim that his dignity was violated failed for want of evidence. Judgment was entered for the claimant with declarations of unfair and unlawful termination and violation of the right to privacy; compensatory damages of Kshs 192,000/= (six months' gross salary) and Kshs 300,000/= general damages for the privacy violation, apportioned equally between the respondents, plus costs of the suit and interest. The respondents filed no submissions despite being given the opportunity. Judgment was delivered virtually under the COVID-19 directions of the Chief Justice.

Key legal issues

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01

Substantive justification for termination

Holding

The 1st respondent failed to prove valid and fair reasons; allegations of soliciting kickbacks were vague, unparticularised and unsupported by statements from or testimony of the service providers or the investigator.

Reasoning

Section 43(1) and section 45(2) of the Employment Act place the burden of proving reasons on the employer. The termination letter cited solicitation from 'service providers' but no service provider gave a statement or testified, the investigator did not testify, and RW1 admitted the claimant was not given the details of the complainants. Vague, general allegations without particulars cannot sustain a termination.

p. 3
02

Procedural fairness under section 41

Holding

Termination was procedurally unfair because no disciplinary hearing was conducted; the employer wrongly treated the external investigation as a substitute for the mandated hearing.

Reasoning

RW1 admitted the claimant was never taken through a disciplinary hearing. Section 41 places the duty of notification and hearing on the employer, a role that cannot be delegated to an external investigator. The investigation report was not shared with the claimant, and the employer adopted it without any internal disciplinary process.

p. 4
03

Violation of the right to privacy

Holding

Both respondents violated the claimant's right to privacy by accessing and using his Mpesa statements without his consent or lawful authority.

Reasoning

Article 31(c) of the Constitution protects private information from unnecessary revelation. The 1st respondent produced the claimant's Mpesa statements as exhibits without explaining how it obtained them; the 2nd respondent obtained them during its investigations without adducing evidence of authority. Neither demonstrated consent by the claimant.

p. 4
04

Violation of the right to dignity

Holding

The dignity claim failed for want of evidence.

Reasoning

The claimant alleged his constitutional right to dignity was violated but produced no evidence in support; the court found the assertion unproved.

p. 5

Legal principles established

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  • An employer must prove both substantive justification and procedural fairness to sustain a fair termination; the burden lies on the employer.
  • It is not enough for an employer to spell out an allegation without particulars; charges against an employee must be substantiated with sufficient detail.
  • An external investigation procured by an employer cannot replace the employer's own statutory duty under section 41 to notify the employee of allegations and accord a hearing.
  • Access to a person's Mpesa transaction details requires express permission and consent of the owner; unauthorised access violates the constitutional right to privacy.

Court orders

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  1. 1.A declaration that the claimant's termination by the 1st respondent was unfair and unlawful
  2. 2.A declaration that the respondents violated the claimant's constitutional right to privacy
  3. 3.Compensatory damages of Kshs 192,000/= (equivalent to 6 months gross salary) against the 1st respondent
  4. 4.Kshs 300,000/= general damages for violation of the right to privacy, equally apportioned against the respondents
  5. 5.Costs of the suit to the claimant
  6. 6.Interest on the declaratory and damages orders at court rates from the date of judgment until payment in full

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45(2)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 41(1)
  • Employment ActSection 45
  • Constitution of KenyaArticle 31(c)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (7)

  • Postal Corporation of Kenya vs Andrew K. Tanui
    (2019) eKLR
  • R vs Inland Revenue Commissioners, Ex P TC Coombs & Co.
    (1991) 2 AC 283, 300
  • Prest vs Petrodel Resources Limited and others
    (2013) UKSC 34
  • Kenya Akiba Microfinancing Limited vs Ezekiel Chebii & 14 others
    (2012) eKLR
  • RC vs KKR
    [2021] eKLR
  • Chairman Board of Directors (National Water Conservation and Pipeline Corporation) vs Meshack M. Saboke & 2 others
    Nairobi Civil Appeal No. 241 of 2015
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Joshua Motari Mongare v Madison Insurance Co Ltd & another [2022] KEELRC 1031 (KLR)", Case Analysis (2022). Cause No 1508 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1031/eng@2022-01-21

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