Kevin v Mohammed Ali Kassamali Madhani t/a Mohamed Madhani & Co. Advocates (Cause E294 of 2020) [2022] KEELRC 1299 (KLR)
The bottom line
#A Kenyan court dismissed an advocate's unfair dismissal claim, ruling his negligence justified summary dismissal and he should have completed the firm's internal appeal first.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
Procedural fairness under Sections 41 and 45 of the Employment Act was substantially observed, save for the irregular participation of Kisinga (the investigator and supervisor) as chair, scribe and adjudicator of the disciplinary panel.
The Claimant was issued a show-cause letter, heard on February 8, 2020, given reasons in the termination letter, allowed a colleague, and given an appeal avenue. No workplace instrument required witness statements in advance. However, Kisinga investigated, chaired, recorded proceedings and recommended termination in a firm with at least 18 Associates, undermining objectivity. This deviation did not, in the Court's view, invalidate the process given the subsequent appeal opportunity.
Substantive fairness - gross negligence
The Claimant was substantively negligent in failing to diarize crucial garnishee hearing dates while on vacation duty, warranting summary dismissal under Section 44(4)(c).
The Claimant was the only qualified Advocate in chambers over the Christmas break when instructions arrived; he knew of the brief, contacted Robson Harris and learned of the January 17, 2020 date, yet failed to diarize it or alert colleagues. His absence from Nairobi on January 28, 2020 was on firm instructions in Kisumu, but the negligence in diarizing exposed the client to payment of Kshs. 6,380,000 and reputational damage.
Exhaustion of internal dispute resolution mechanisms
The Claim is irreceivable because the Claimant initiated but never completed the internal appeal to Madhani, challenging only the first-level disciplinary decision rather than a final decision.
The Claimant expressed intention to appeal, sought documents, was facilitated and granted an extended 7-day window, but never filed the appeal. Citing Geoffrey Muthinja, the Court held that courts are a forum of last resort; the internal appellate process was not a useless gesture and could have redressed shortcomings of the disciplinary panel, including Kisinga's involvement.
Constitutional damages and injury to employability
No compensation, constitutional or exemplary damages were merited; the disciplinary characterisations were not made out of turn and employability was not shown to be injured.
With roughly one year of service (half probationary), the amounts claimed were disproportionate. The words 'untrustworthy and lacking good judgment' reflected the Claimant's conduct, were not broadcast to the profession, no adverse reference was given, and the Claimant continued in legal practice with his practising certificate intact.
Legal principles established
#- Where internal dispute resolution mechanisms are not exhausted, the claim is rendered irreceivable before the Court
- In workplaces with adequate staff, panellists with no familiarity with investigations should preside over disciplinary hearings; a supervisor who investigated should not chair, record and adjudicate
- Negligence in performance of duty is an employment offence under Section 44(4)(c) of the Employment Act warranting summary dismissal
Court orders
#- 1.The Claim is declined
- 2.No order on the costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (fair termination and fair administrative action claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kevin v Mohammed Ali Kassamali Madhani t/a Mohamed Madhani & Co. Advocates (Cause E294 of 2020) [2022] KEELRC 1299 (KLR)", Case Analysis (2022). Cause No E294 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1299/eng@2022-07-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.