Mutonyi v Phoenix Aviation Limited (Cause 549 of 2016) [2023] KEELRC 707 (KLR)
The bottom line
#A Kenyan court ruled an employee's dismissal over theft suspicions was unfair because the employer skipped the mandatory hearing process, awarding him pay, compensation, and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair
The termination was procedurally unfair though substantively justified; the employer proved no notice to show cause, hearing or minutes.
The court found the employer may have had reasonable grounds to suspect the Claimant of the theft, giving a valid substantive reason. However, the Respondent tendered no evidence of compliance with sections 41 and 45(2)(c): no notice to show cause, no disciplinary minutes, and the Claimant testified he was never invited to a hearing. Procedural fairness was therefore not met, rendering the termination procedurally unfair.
Burden of proof in an undefended claim
The burden remains on the employee to prove unfair termination even where the respondent does not participate.
Relying on Humphrey Munyithya Mutemi v Soluxe International and Nicholus Kipkemoi Korir v Hatari Security Guards, the court held that the respondent's withdrawal and non-participation does not lower the claimant's evidentiary burden under sections 107-109 of the Evidence Act; the claimant must still prove entitlement to each relief.
Remedies for unfair termination
Claimant awarded one month's notice pay, service pay for 5 years, and the equivalent of 2 months' salary under section 49(1)(c).
Considering the ~5-year service, absence of a request for reinstatement or appeal, the theft allegation and subsequent acquittal, and the prior working relationship, the court found the equivalent of 2 months' salary fair compensation, plus notice pay and service pay since the employer proved no NSSF deductions.
Whether malicious prosecution was proved
The issue was unsubstantiated as it was neither pleaded nor proved.
The court observed that although counsel argued malicious prosecution, the Claimant never pleaded it, adduced no evidence of the elements, and sought no relief on it; allegations must be proved under sections 107, 108 and 109 of the Evidence Act.
Legal principles established
#- Termination must be both substantively justifiable and procedurally fair to pass the fairness test.
- The burden of proving unfair termination rests on the employee even in an undefended suit.
- Termination without notice to show cause or disciplinary hearing breaches procedural fairness under sections 41 and 45(2)(c) of the Employment Act.
Court orders
#- 1.Declaration that termination of the Claimant's employment was unfair.
- 2.One month's salary in lieu of notice.
- 3.Service pay for 5 years at the rate of not less than 15 days for each completed year of service.
- 4.Equivalent of 2 months' salary as compensation for unfair termination.
- 5.Costs of the suit to the Claimant.
- 6.Interest at court rates from the date of judgment till payment in full.
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mutonyi v Phoenix Aviation Limited (Cause 549 of 2016) [2023] KEELRC 707 (KLR)", Case Analysis (2023). Cause No 549 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/707/eng@2023-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.