Mudongoi v Mudete Factory Tea Growers Co-operative Savings and Credit Society Limited (Cause 27 of 2017) [2022] KEELRC 1576 (KLR)

The Respondent, bearing the burden under sections 43 and 47(5) of the Employment Act, produced the show cause letters and summary dismissal letter listing the reasons: carelessly and improperly performing duty, involving herself in personal financial dealings with clients, suspicion of committing a criminal offence, insubordination and loss of fidelity bond. The court found these reasons proved on a balance of probability and related to the Claimant's duties.

The particulars of discrimination were not pleaded, no evidence was led on the allegation, and the Anarita Karimi precision test was not met. On loss of pregnancy, the document relied on (JMM8) was a caesarean section report showing a live infant and did not prove the allegation; the demand letter also made no such claim, so the court found no proof.

The Claimant was suspended indefinitely without salary for over a year with no communication on the disciplinary process; the process only commenced after her advocate's demand letter of 13th December 2016, and she had already been replaced before the dismissal letters issued. Such an administrative process was neither fair nor expeditious contrary to Article 47, and prolonged suspension beyond six months without pay is unfair.

Taking into account the period of service and the agony of waiting over a year on suspension without salary, the court found this a case deserving 12 months' salary as compensation for violation of constitutional rights under Article 47, since reinstatement was unavailable. Notice pay was refused as reasons for dismissal were justified; the leave claim was unproved; 10 days' salary for March 2016 was granted as the employer gave no evidence of payment.