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ELRCPartially AllowedNot stated in the judgment· [2022] KEELRC 1653 (KLR)

Muli v Rentokil Initial (K) Ltd (Cause 1215 of 2016) [2022] KEELRC 1653 (KLR)

Employment and Labour Relations Court
4 August 2022
AMANNA NGIBUINI MWAURE
3,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent pest control company from 2007 (contract effective 1/8/2012) as a service man, was summarily dismissed on September 5, 2015 on allegations of offering private pest control services to clients and collecting client money without remitting it. He claimed he was denied a fair hearing and terminal dues, claiming Kshs 677,894/15. The Respondent maintained the dismissal was for gross misconduct following a disciplinary hearing on September 5, 2015, relying on prior warning letters and an alleged admission. The court framed two issues: whether the termination was fair and procedural, and whether the Claimant was entitled to the reliefs sought. Applying sections 41, 43, 45 and 47(5) of the Employment Act and the fairness test in Walter Ogal Omoro vs Teachers Service Commission, the court found the allegations speculative and unsubstantiated: the minutes were unsigned, the alleged customers were not named in the termination letter, and M-Pesa transactions could not be linked to the Respondent's products. Procedurally, the Claimant had only two days' notice and no clear opportunity to call witnesses. The termination was declared unfair. The court awarded one month's notice pay (Kshs 27,669), 24 days' untaken leave, and three months' compensation (Kshs 83,000.45), totalling Kshs 138,345.75, with costs, interest, and a certificate of service. Severance pay was refused as the Claimant was not declared redundant. Judgment delivered by Anna Ngibuini Mwaure, Judge, in Nairobi on August 4, 2022.

Key legal issues

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01

Substantive justification for termination

Holding

The reasons given (offering private pest control services, collecting client money) were speculative and unsubstantiated; the respondent failed to prove a valid and fair reason.

Reasoning

The disciplinary minutes were unsigned, the alleged customers were not named in the termination letter, and the M-Pesa transactions could not be isolated or linked to sale of the respondent's pest control products without payee verification. Warning letters contained numerous accusations but no tangible evidence connected the Claimant to any wrongdoing, so the reasons failed the fairness test.

p. 6
02

Procedural fairness under section 41

Holding

The procedure was flawed: only two days' notice of the disciplinary hearing, no clear opportunity to call a witness, and unsigned minutes not confirmed as accurate.

Reasoning

The invitation letter was written on September 3, 2015 for a hearing on September 5, 2015, giving insufficient preparation time. The Claimant was told he could have a representative but the court was not satisfied he could call a witness, and he did not sign or confirm the minutes. Section 41 compliance was therefore not met.

p. 6
03

Remedies for unfair termination

Holding

Claimant awarded one month's notice pay, 24 days' untaken leave, and 3 months' compensation, plus costs and interest; severance refused.

Reasoning

Considering employment from 2012 to termination in 2015, the court awarded 3 months' compensation for unlawful termination, notice pay, and computed untaken leave from the documents on file. Severance was declined because there was no redundancy. Certificate of service and interest were also ordered.

p. 8

Legal principles established

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  • Termination must satisfy both substantive justification and procedural fairness
  • Burden of proving unfair termination rests on the employee; burden of justifying grounds for termination rests on the employer

Court orders

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  1. 1.One month salary in lieu of notice of Kshs 27,669/-
  2. 2.Compensation for untaken leave of 24 days (2014: 16 days; 2015: 8 days)
  3. 3.Compensation for unlawful termination equivalent to 3 months' salary at Kshs 83,000.45/-
  4. 4.Total award of Kshs 138,345.75/-
  5. 5.Costs awarded to the Claimant
  6. 6.Interest at court rates from the date of judgment till full payment
  7. 7.Certificate of service to be availed to the Claimant within 14 days

Authorities

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Legislation

  • Employment Actsection 41(1)-(4)
  • Employment Actsection 42(1)
  • Employment Actsection 43(1)
  • Employment Actsection 45(1)-(5)
  • Employment Actsection 46
  • Employment Actsection 47(5)
  • Employment Actsection 51
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (2)

  • Peter Mutinda Ngei vs Rentokil Initial K Ltd
    (2022) eKLR
  • Walter Ogal Omoro vs Teachers Service Commission
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination and wrongful dismissal under the Employment Act, 2007

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, "Muli v Rentokil Initial (K) Ltd (Cause 1215 of 2016) [2022] KEELRC 1653 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1653/eng@2022-08-04

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