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ELRCPartially Allowed· [2023] KEELRC 568 (KLR)

Kinyua v Bidco African Limited (Employment and Labour Relations Cause 37 of 2019) [2023] KEELRC 568 (KLR)

Employment and Labour Relations Court
2 March 2023
7,463 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Bidco's dismissal of an employee without a fair hearing cost it 12 months' salary, because employers need both a valid reason and a fair process before firing.

What this practically means

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Executive summary

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The Claimant, a fitter and later senior fitter who rose to shop-steward of the Kenya Chemical Workers Union, was summarily dismissed by the Respondent following a disciplinary hearing on 6th June 2016 on allegations of neglect of duty, refusal to acknowledge written communication, disobedience of lawful orders and disrespect towards superiors. He sued seeking declarations of continuous employment, wrongful and unfair dismissal, discrimination and constitutional violations, plus terminal dues of Kshs.1,005,375 and compensation. The court framed four issues: the nature of the employment relationship, the fairness of the dismissal, entitlement to reliefs, and costs. On the evidence, the court declared the Claimant a month-to-month employee at Kshs.27,870 gross monthly salary, reasoning that his 2007 confirmation letter was uncontroverted and the Respondent's unsigned fixed-term contract and missing employment records could not displace it. The court found the dismissal both substantively and procedurally unfair: no evidence was called to prove the misconduct, particulars of charges were withheld, the right to representation was not communicated, the hearing was moved to Thika contrary to the Claimant's station, and the purported appeal minutes were unsigned, misdated and of no evidential value. The court concluded the disciplinary process was geared to a predetermined outcome linked to the Claimant's union activities, though the discrimination and constitutional violation claims failed for want of precise pleading and proof. The court awarded one month's salary in lieu of notice (Kshs.27,870) and maximum compensation of twelve months' gross salary (Kshs.334,440), totalling Kshs.362,310 with interest, ordered issuance of a certificate of service within 30 days, and awarded the Claimant costs, denying all other monetary claims as time-barred or unevidenced.

Key legal issues

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01

Nature of the employment relationship - permanent/month-to-month or fixed term

Holding

The Claimant was a month-to-month employee at a gross monthly salary of Kshs.27,870/= as at dismissal

Reasoning

The Claimant produced a confirmation letter dated 17th October 2007 confirming him on permanent and pensionable terms with effect from 1st October 2007. The fixed term contract relied on by the Respondent was neither signed nor acknowledged by the Claimant, and the Respondent failed to avail all the contracts it alleged governed the entire employment. The Respondent also produced no employment records to disprove the Claimant's evidence despite its statutory duty to keep such records.

p. 12
02

Whether the summary dismissal was substantively and procedurally fair

Holding

The dismissal was wrongful, unfair and unlawful for want of both substantive and procedural fairness

Reasoning

No evidence was called at the disciplinary hearing or in court to prove the alleged gross misconduct; no particulars of the charges were supplied; the Claimant was not informed of his right to representation; the hearing was held at Thika rather than Nakuru where he was stationed; and the appeal minutes were unsigned, misdated and unauthentic. The process appeared geared to a predetermined outcome of dismissal.

p. 15
03

Whether the Claimant was discriminated against on account of union activities and whether his constitutional rights were violated

Holding

The discrimination and constitutional violation claims failed for failure to plead and prove them to the required threshold

Reasoning

Although the court found it highly probable that the dismissal was linked to the Claimant's union activities, no clear evidence was adduced. Under Anarita Karimi Njeru and Mumo Matemu a party pleading constitutional violation must plead with reasonable precision the provisions infringed and the manner of infringement, which the Claimant failed to do.

p. 16
04

Reliefs: notice pay, compensation and certificate of service

Holding

One month's salary in lieu of notice and maximum 12 months' gross salary compensation awarded; certificate of service ordered; other monetary claims denied

Reasoning

As a month-to-month employee the applicable notice was one month. Compensation at the maximum of 12 months' gross salary was justified by the Claimant's long service of about eight years, the unfairness of the dismissal, and his failure to secure other employment. The remaining monetary claims were time-barred or unsupported by evidence.

p. 17

Legal principles established

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  • An employer must have a legal reason and adopt the proper legal procedure before terminating or dismissing an employee
  • Rules of natural justice apply in disciplinary hearings: the employee is entitled to particulars of the charges, notice of the right to representation, and the right to test evidence by cross-examination
  • Where the employer is under a statutory duty to keep employment records and fails to produce them, the unchallenged evidence of the employee stands
  • An employee is not bound by, or estopped from litigating by, union negotiations with the employer over his dues
  • Unauthenticated, unsigned and misdated minutes of an appeal hearing have no evidential value

Court orders

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  1. 1.A declaration be and is hereby issued that the Claimant was an employee of the respondent on a contract of service running from month to month
  2. 2.A declaration be and is hereby issued that the dismissal of the Claimant by the Respondent was wrongful, unfair, and unlawful
  3. 3.The Claimant is awarded a total of Kshs.362,310/= together with interest thereon from the date of this judgment less statutory deductions
  4. 4.All the other claims are denied
  5. 5.The Claimant is awarded costs of this cause
  6. 6.The Respondent is ordered to issue and deliver a certificate of service within 30 days of this judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Articles 27, 41 and 43 of the Constitution of Kenya, 2010

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, "Kinyua v Bidco African Limited (Employment and Labour Relations Cause 37 of 2019) [2023] KEELRC 568 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/568/eng@2023-03-02

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