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ELRCDismissedCause No E294 of 2020· [2022] KEELRC 1299 (KLR)

Kevin v Mohammed Ali Kassamali Madhani t/a Mohamed Madhani & Co. Advocates (Cause E294 of 2020) [2022] KEELRC 1299 (KLR)

Employment and Labour Relations Court of Kenya
7 July 2022
6,638 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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An Advocate employed by the Respondent law firm from January 1, 2019 was summarily dismissed on February 10, 2020 on the ground of gross negligence in handling a garnishee matter, Nairobi HCCC No. E196 of 2019, in which the client, Diamond Trust Bank, was compelled to pay Kshs. 6,380,000. The Claimant alleged the dismissal was procedurally and substantively unfair, based on an unassigned file, a biased panel chaired by his supervisor Kisinga, contradictory witnesses, and denial of fair hearing; he sought declarations, 12 months' salary compensation, constitutional damages, exemplary damages, interest and costs. The Respondent maintained the dismissal was fair, that the Claimant admitted negligence, and that he failed to exhaust internal appeal mechanisms. The Court found procedure substantially fair under Sections 41 and 45 of the Employment Act, though Kisinga's triple role as investigator, chair and scribe was improper in a firm with adequate staff. Substantively, the Claimant, as vacation-duty Advocate, was negligent in failing to diarize the January 17 and 28, 2020 hearing dates, an offence warranting summary dismissal under Section 44(4)(c). The Court also held the Claim irreceivable for failure to exhaust internal remedies, applying the exhaustion doctrine. All remedies were refused as disproportionate to one year of service. The Claim was declined with no order on costs.

Key legal issues

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01

Procedural fairness of the summary dismissal

Holding

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.

Reasoning

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.

p. 9
02

Substantive fairness - gross negligence

Holding

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).

Reasoning

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.

p. 10
03

Exhaustion of internal dispute resolution mechanisms

Holding

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.

Reasoning

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.

p. 11
04

Constitutional damages and injury to employability

Holding

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.

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.The Claim is declined
  2. 2.No order on the costs

Authorities

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Legislation

  • Employment ActSections 41, 45
  • Employment ActSection 44(4)(c)
  • Constitution of Kenyafair administrative action and fair hearing rights (as invoked in pleadings)

Cases cited (4)

  • Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others
    [2015] eKLR
  • Feroz Ali Omar v ECU Worldwide Limited
    [2018] eKLR
  • Jackson Butiya v Eastern Produce Limited
    Cause No. 335 of 2011
  • Robson Harris & Company Advocates v Invesco Assurance Company, Diamond Trust Bank & 2 others
    Nairobi HCCC No. E196 of 2019
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (fair termination and fair administrative action claims)

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, "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.