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ELRCPartially AllowedCause No 3 of 2020· [2022] KEELRC 1165 (KLR)

Ali v Grain Industries Limited (Cause 3 of 2020) [2022] KEELRC 1165 (KLR)

Employment and Labour Relations Court
13 May 2022
BOBYRAM ONGAYA
4,438 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled a manager's dismissal was unfair because his employer pre-judged the allegations, awarding him over Kshs 2.8 million.

What this practically means

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Executive summary

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The claimant, employed as Regional Sales Manager on a five-year fixed-term contract from January 1, 2017 at Kshs. 150,000 per month, sued for unlawful and unfair summary dismissal effected August 19, 2019. He claimed unpaid salary, six months' notice pay, accrued leave, and 12 months' compensation, totalling Kshs. 3,225,000, plus a certificate of service. The respondent justified the dismissal on loss of trust and confidence, alleging conflict of interest with a competitor and insubordination, and contended due process was followed but the claimant declined to participate. The court found the show-cause letter of July 12, 2019 predetermined the claimant's culpability by declaring him grossly negligent before any hearing, and that requested particulars of the allegations were never supplied, as RW conceded in cross-examination. The reasons in the dismissal letter varied substantially from those in the show-cause letter, and RW admitted no evidence or witnesses supported the allegations before the disciplinary panel or in court. The court held the procedure unfair under section 45(2)(c), the reasons invalid under section 43, and found the dismissal partly punished the claimant's valid grievance, contrary to section 46(h). The claimant was awarded nine months' salary compensation (Kshs. 1,350,000) after a 25% deduction for his own contribution, six months' notice pay (Kshs. 900,000), outstanding salary of Kshs. 241,935.50, Kshs. 75,000 for accrued leave, and a certificate of service. Judgment of Kshs. 2,808,871 less PAYE was entered, with costs to the claimant. The claim for September 2019 salary was refused.

Key legal issues

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01

Fairness of the termination procedure

Holding

The procedure was unfair: the show-cause letter predetermined culpability and particulars requested were never provided

Reasoning

RW admitted the show-cause letter had already found the claimant grossly negligent before any defence or hearing, and that particulars of allegations requested by the claimant's advocates were never provided, making it impossible for him to defend himself. The court held the process was calculated to sanitize a predetermined dismissal and so failed section 45(2)(c) of the Employment Act.

p. 5
02

Validity of reasons for termination

Holding

Respondent failed to show valid and genuine reasons; dismissal letter reasons varied from show-cause allegations and included the claimant's valid grievances

Reasoning

The summary dismissal letter cited failure to attend hearings and the advocates' letter, at variance with the show-cause allegations of conflict of interest and insubordination. RW conceded no witnesses or evidence supported the allegations. The court found the respondent failed under sections 43 and 47(5) to justify the grounds, and dismissal for raising grievances offended section 46(h).

p. 6
03

Remedies: compensation, notice pay, salary, leave, certificate of service

Holding

Nine months' compensation (25% deduction for claimant's contribution), 6 months' notice pay per clause 9, outstanding salary of Kshs. 241,935.50, Kshs. 75,000 leave, and certificate of service awarded

Reasoning

Considering the 30-month unexpired tenure and aggravating factors (dismissal partly for the grievance; belated service of the dismissal letter), the court awarded 9 months after a 25% deduction for the claimant's contribution. Clause 9's six-month notice bound both parties by reciprocity, and accrued leave and certificate of service followed as of right.

p. 7
04

Legal representation in internal disciplinary processes

Holding

Appointment of an advocate to demand particulars was proper; the respondent's hostility was unjustified, and RW retracted the allegation that seeking legal advice was gross misconduct

Reasoning

The court cited its opinion in Republic v Arnold Karani Njiru on the right to legal representation in administrative processes, but noted the claimant only appointed an advocate to write demand letters, not to attend the hearing. The respondent having invited a trusted person, it could not object to the advocate; the hostility was unjustified and RW retracted the misconduct claim in cross-examination.

p. 5

Legal principles established

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  • An employer must provide particulars of allegations in a show-cause letter; failure renders the disciplinary procedure unfair under section 45(2)(c)
  • Dismissing an employee partly for raising a valid grievance is unfair under section 46(h)
  • Whether an employee is paid during suspension depends on the outcome of the disciplinary process
  • Legal representation during administrative decision-making is a crucial component of fair hearing absent clear statutory qualification

Court orders

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  1. 1.Payment of Kshs. 2,808,871.00 (less PAYE) by July 1, 2022 failing interest at court rates from date of judgment till full payment
  2. 2.Respondent to deliver the claimant's certificate of service per section 51 of the Employment Act by May 31, 2022
  3. 3.Respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment Act, 2007sections 35(1), 35(2), 41, 43, 44(d) and (g), 45(2)(c), 46, 46(h), 47(5), 49, 51
  • Advocates ActNot specified (referred to regarding legal representation)
  • Constitution of Kenya, 2010Article 41(1) (as referenced in quoted passage from Grace Gacheru Muriithi)

Cases cited (2)

  • Republic –Versus- Arnold Karani Njiru, Fund Account Manager, Laikipia East Costituency Fund and 10 Others Ex-parte Amin Mohammed Ali
    [2015] eKLR
  • Grace Gacheru Muriithi –Versus- Kenya Literature Bureau
    (2012) eKLR
Jurisdiction invoked
Employment Act, 2007 (first-instance employment claim under ss. 41, 43, 45, 46, 47, 49, 51)

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, "Ali v Grain Industries Limited (Cause 3 of 2020) [2022] KEELRC 1165 (KLR)", Case Analysis (2022). Cause No 3 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1165/eng@2022-05-13

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