Mwitumi v Rafiki Microfinance Bank Limited & another (Cause 845 of 2017) [2023] KEELRC 565 (KLR)
The bottom line
#A Kenyan employer that cannot prove an employee received a dismissal letter, or hold a proper disciplinary hearing, must pay compensation for unfair termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim was statute-barred under Section 90 of the Employment Act
The claim was properly before the Court; time had not begun to run because delivery of the dismissal letter was not proved.
Following the Court of Appeal's finding that the date of termination was a contested fact, the court held that accrual of the cause of action awaited communication received by the Claimant. The 1st Respondent failed to prove that the dismissal letter was delivered, so the date on that letter could not be used as the accrual date. The verifying affidavit objection was also rejected as unsupported by law.
Whether the dismissal was substantively and procedurally fair
The dismissal was substantively and procedurally unfair.
The Respondent alleged the Claimant admitted stealing Kshs 5,200,000 but adduced no evidence of any formal admission. The alleged Staff Disciplinary Committee meeting on August 19, 2014 - the same day the dismissal letter was issued - could not satisfy the mandatory process under Section 41 of the Employment Act, and no witness could confirm the meeting's nature or content. No disciplinary process was proved at the shop floor, and the reason for dismissal was not validly established.
What remedies flow from the unfair dismissal
Six months' salary in compensation and one month's salary in lieu of notice awarded; service pay refused.
In fixing compensation at six months' salary, the court considered the Claimant's length of service (about two years) and the Respondent's unlawful conduct in executing the dismissal. Notice pay was awarded as it was pleaded. The service pay claim failed for want of basis, and the damages claims were abandoned with the withdrawal of the claim against the 2nd Respondent.
Legal principles established
#- The limitation period does not begin to run until communication of termination is received by the employee; the employer bears the burden of proving delivery of the dismissal letter.
- Where there is no formal admission of misconduct on record, the employer must take the employee through the mandatory disciplinary process under Section 41 of the Employment Act.
Court orders
#- 1.Six months' salary in compensation for unfair termination (Kshs 540,000)
- 2.One month's salary in lieu of notice (Kshs 90,000)
- 3.Interest at court rates from the date of judgment until payment in full
- 4.Claimant to have the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination and terminal dues)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwitumi v Rafiki Microfinance Bank Limited & another (Cause 845 of 2017) [2023] KEELRC 565 (KLR)", Case Analysis (2023). Cause No 845 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/565/eng@2023-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.