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ELRCPartially AllowedMemorandum of Claim dated 3rd May 2019, filed 7th May 2019 (ELRC)· [2023] KEELRC 620 (KLR)

Indogo v Ankole Grill Limited (Cause 294 of 2019) [2023] KEELRC 620 (KLR)

Employment and Labour Relations Court
16 March 2023
LNLINNET NDOLO
2,213 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court found a chef's dismissal unfair because the employer skipped a proper hearing and couldn't prove its accusations, awarding him Kshs. 750,000.

What this practically means

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Executive summary

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The Claimant, employed as Head Chef by the Respondent from 1st May 2017 at a monthly salary of Kshs. 150,000, was suspended on 25th March 2019 pending a show cause hearing, and summarily dismissed on 29th March 2019 on charges of using abusive language and misrepresenting the Company. He filed a Memorandum of Claim alleging the dismissal was wrongful and unfair, contending that no valid reasons or particulars were given, his accusers were not disclosed and he was unable to prepare a defence. The Respondent maintained there were valid reasons, citing prior disciplinary incidents, and that due procedure was followed, further asserting the Claimant received terminal dues of Kshs. 147,142.70. The court framed two issues: whether the dismissal was lawful and fair, and whether remedies were due. It found the procedure flawed: the show cause letter indicated written representations would form the basis of the hearing, the Claimant lacked adequate opportunity to respond, could not face his accusers and was denied particulars, as the Respondent's witness conceded. None of the allegations were proved to the Section 43 Employment Act standard, so the dismissal was wrongful and unfair. The court awarded four months' salary in compensation (Kshs. 600,000) and one month's salary in lieu of notice (Kshs. 150,000), totaling Kshs. 750,000, with interest at court rates from the date of judgment, a certificate of service and costs. The 12-month compensation claim was scaled down and reinstatement was not granted. Judgment delivered virtually at Nairobi on 16th March 2023 by Linnet Ndolo, Judge.

Key legal issues

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01

Whether the dismissal was lawful and fair

Holding

The dismissal was wrongful and unfair

Reasoning

The show cause letter indicated written representations would form the basis of the hearing, suggesting a predetermined escalation to a personal hearing. The Claimant was denied adequate opportunity to respond, could not face his accusers, and was not furnished with particulars of the accusations. The Respondent's own witness conceded that neither charge was accompanied by details and that the Claimant's request for specifics and the complainants' identity was refused. Accordingly, no allegations were proved to the Section 43 standard.

p. 5
02

Whether the Claimant is entitled to the remedies sought

Holding

Compensation of four months' salary, one month's notice pay, certificate of service and costs awarded; 12 months' compensation and reinstatement not granted

Reasoning

Having found the dismissal wrongful and unfair, the court awarded compensation guided by length of service, the Claimant's employment record and the Respondent's unlawful conduct. One month's salary in lieu of notice was awarded. The claim for 12 months' compensation was scaled down and reinstatement was not granted, the claimant having already been paid some terminal dues.

p. 6

Legal principles established

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  • Where a show cause letter has been issued, the employee must first answer it and, if the response is unsatisfactory, be subjected to a personal hearing; an escalatory summary procedure is not known in law
  • An employer must prove allegations against an employee to the standard required by Section 43 of the Employment Act; merely reciting grounds without particulars or witnesses is insufficient

Court orders

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  1. 1.Judgment entered in favour of the Claimant for Kshs. 750,000 comprising 4 months' salary in compensation (Kshs. 600,000) and 1 month's salary in lieu of notice (Kshs. 150,000)
  2. 2.Interest on the decretal sum at court rates from the date of judgment until payment in full
  3. 3.Certificate of service to be issued to the Claimant
  4. 4.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Employment ActSection 43

Cases cited (2)

  • Peter Kamwi v Standard Group Limited
    [2016] eKLR
  • Andrew K. Tanui v Postal Corporation of Kenya
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Indogo v Ankole Grill Limited (Cause 294 of 2019) [2023] KEELRC 620 (KLR)", Case Analysis (2023). Memorandum of Claim dated 3rd May 2019, filed 7th May 2019 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/620/eng@2023-03-16

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