Mutungi v Kamwathi (Employment and Labour Relations Cause 1435 of 2017) [2023] KEELRC 473 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was procedurally fair
It was procedurally unfair; the Respondent led no evidence of compliance with section 41
Section 41 requires an employer, before terminating on grounds of misconduct, to explain the reasons to the employee and hear their representations, with a fellow employee or union representative present. The provision is mandatory. The Respondent filed no response and adduced no evidence, so it failed to discharge the burden under section 45(2) of proving procedural fairness.
Whether the dismissal was substantively justified
It was substantively unjustified; no reason for the termination was proved
Under sections 43 and 45 the employer must prove the reasons for termination and that they were valid and fair. The Respondent adduced nothing. On the Claimant's unchallenged evidence, he was dismissed for arriving home late due to a traffic jam, which cannot constitute gross misconduct under section 44(4). The dismissal was therefore both procedurally and substantively unfair.
Entitlement to notice pay, December salary, service pay and compensation
Awarded at Kshs 15,000 notice pay, Kshs 11,129 December salary, Kshs 90,000 service pay and 10 months' compensation of Kshs 150,000
The court used the documented salary of Kshs 15,000 rather than the pleaded Kshs 20,000. December salary was prorated for 23 days. Service pay was awarded under section 35(5) and (6) for 12 completed years at 15 days per year. Compensation under section 49(1)(c) was set at 10 months' gross salary given the length of service and absence of employee fault.
Legal principles established
#- Procedural fairness under section 41 of the Employment Act is mandatory and non-adherence renders a termination unfair under section 45
- The employer bears the burden of proving both procedural fairness under section 45(2) and valid and fair reasons under sections 43 and 45
- A delay caused by a traffic jam does not amount to gross misconduct justifying summary dismissal under section 44
Court orders
#- 1.A declaration that the Claimant's termination from employment was both procedurally and substantively unfair
- 2.One month's salary in lieu of notice - Kshs 15,000
- 3.Salary for the days worked in December 2016 - Kshs 11,129.00
- 4.10 months' compensation for unfair termination - Kshs 150,000
- 5.Service pay for the years worked, computed at the rate of 15 days - Kshs 90,000
- 6.Costs of the suit to be borne by the Respondent
- 7.Interest at court rates from the date of judgment till full payment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44, 45, 49 and 51 invoked)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutungi v Kamwathi (Employment and Labour Relations Cause 1435 of 2017) [2023] KEELRC 473 (KLR)", Case Analysis (2023). Statement of Claim dated July 20, 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/473/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.