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ELRCPartially AllowedCause No 713 of 2017· [2022] KEELRC 1467 (KLR)

Atingo v Borderless Tracking Limited (Cause 713 of 2017) [2022] KEELRC 1467 (KLR)

Employment and Labour Relations Court
16 June 2022
JGJacob Gakeri
3,765 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 an employer's dismissal unfair because it never gave the employee reasons or a hearing, despite having grounds to fire him.

What this practically means

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Executive summary

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The claimant, employed as Security Manager in December 2014 at a monthly salary of Kshs.70,000, alleged unfair termination by the respondent's CEO via email effective August 1, 2016, claiming Kshs.844,073 in terminal dues, compensation, a certificate of service, costs and interest. The respondent denied unfair termination, asserting the claimant was lawfully dismissed for gross misconduct - negligence as head of security that led to fraud losses and KRA fines. The court framed two issues: whether the termination was unlawful or unfair, and entitlement to reliefs. It held that although the respondent may have had sustainable reasons relating to the claimant's performance, the reasons were never put to the claimant for rebuttal, no disciplinary hearing was held, and no appraisal, warning or improvement plan was produced; the termination was therefore unfair for want of procedural fairness under sections 41 and 45 of the Employment Act. On reliefs, applying the burden of proof under sections 107 and 108 of the Evidence Act, the court dismissed the claims for rest days, salary from July to October 2016, allowances and service pay for lack of evidence, but awarded one month's salary in lieu of notice (uncontested and unavailable), unpaid leave for the seven months worked in 2016, compensation equivalent to two months' salary (Kshs.140,000) under section 49(1)(c) after considering the short service, the claimant's contribution to the termination and his failure to engage the respondent, plus a certificate of service under section 51, costs and interest. Judgment was delivered virtually under COVID-19 directions on June 16, 2022 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Whether the termination was unlawful and unfair

Holding

The termination was substantively possibly justified but procedurally unfair because the respondent never notified the claimant of the reasons or accorded him a hearing, and led no evidence of a disciplinary process, appraisal or warning.

Reasoning

The court found the reasons for termination (negligence and non-performance) were never put to the claimant for rebuttal, violating his right to fair hearing under sections 41 and 45 of the Employment Act and Article 50 of the Constitution. No performance appraisal, warning letter or improvement plan was produced, and no evidence of a disciplinary hearing existed. Procedural fairness therefore failed entirely.

p. 7
02

Quantum of compensation under section 49(1)(c)

Holding

The equivalent of two months' salary (Kshs.140,000) was awarded as fair compensation.

Reasoning

The court considered the short duration of employment (one year and eight months), the claimant's failure to appeal or engage the respondent on the dismissal, his clean record for most of the period, and the finding that the claimant contributed to the termination. These factors under section 49(4) justified a modest award of two months' salary.

p. 8
03

Burden of proof on the reliefs claimed

Holding

The bulk of the monetary claims failed because the claimant tendered no evidence or computation in support.

Reasoning

Applying sections 107 and 108 of the Evidence Act (he who alleges must prove), the court found the claimant offered no proof of rest days worked, allowances claimed, or non-remittance of NSSF contributions, and the figures were arbitrary with no computation provided. Only uncontested and evident claims succeeded.

p. 7

Legal principles established

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  • An employer must prove the reasons for termination, that they are valid and fair, and comply with the mandatory notification and hearing process under section 41 of the Employment Act
  • Termination of employment must be both substantively justifiable and procedurally fair

Court orders

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  1. 1.One month's salary in lieu of notice
  2. 2.Unpaid leave for seven months worked in 2016
  3. 3.Equivalent of two months' compensation (Kshs.140,000)
  4. 4.Certificate of service
  5. 5.Costs of this suit
  6. 6.Interest on the amount due at court rates from the date hereof till payment in full

Authorities

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Legislation

  • Employment Actsections 35(6)(d), 41, 43, 44(4)(c), 45, 45(2)(c), 47(5), 49(1)(c), 49(4), 51
  • Evidence Actsections 107 and 108
  • Civil Procedure Actsection 27; section 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenya, 2010Articles 48, 50, 159(2)(d)

Cases cited (14)

  • Alphonse Maghanga Mwachanya v Operation 680 Limited
    [2013] eKLR
  • Ezekiel Mburu Kangethe & 2 others v Mugoiri Five Farmers Co-operative Society Limited
    [2017] eKLR
  • Grace Muthoni Gitonga v Rosa Project Nairobi Cause No. 264(N) of 2009
    (unreported)
  • Martin Wekesa Wamalwa v Barrow & Grundy (Ukunda) Ltd
    [2013] eKLR
  • George Okello Munyolo v Unilever Kenya Limited
    [2019] eKLR
  • Thomas Sila Nzivo v Bamburi Cement Limited
    [2014] eKLR
  • Benjamin Maundu Syanda v Telkom Kneya Limtied
    [2020] eKLR
  • Republic v Egerton University Ex-parte Robert Kipkemoi Koskey
    [2006] eKLR
  • Jacob Oriando Ochanda v Kenya Hospital Association Ltd t/a Nairobi Hospital
    [2019] eKLR
  • Cecilia Karuru Ngavu v Barclays Bank of Kenya Limited & another
    [2016] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Naima Khamis v Oxford University Press (EA) Limited
    [2017] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance memorandum of claim)

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, "Atingo v Borderless Tracking Limited (Cause 713 of 2017) [2022] KEELRC 1467 (KLR)", Case Analysis (2022). Cause No 713 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1467/eng@2022-06-16

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