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ELRCPartially AllowedCause No 549 of 2016· [2023] KEELRC 707 (KLR)

Mutonyi v Phoenix Aviation Limited (Cause 549 of 2016) [2023] KEELRC 707 (KLR)

Employment and Labour Relations Court
15 March 2023
2,572 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 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

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Executive summary

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The claimant sued the respondents in the Employment and Labour Relations Court at Nairobi alleging wrongful and unfair termination of his employment as an Office Messenger. He claimed he was employed by the 1st respondent's entities from 2004, engaged as an Office Messenger in 2008, arrested in April 2013 after a safe disappeared from the 1st respondent's house, charged with stealing by servant, and thereafter dismissed by word of mouth without payment. He sought unpaid salary, notice pay, overtime, service pay and damages. The respondents filed a memorandum of reply and counter-claim of Kshs.850,050 for the lost items, alleging gross misconduct, but did not adduce evidence, their counsel having withdrawn from acting in June 2022. The court framed two issues: whether the termination was unfair and entitlement to reliefs. It found the employer may have had a valid substantive reason to terminate (suspicion of theft) but that the termination was procedurally unfair for want of notice to show cause or a hearing. The court held the burden of proof remained on the employee despite the undefended suit, declined the malicious prosecution issue as unpleaded and unproved, and dismissed the April 2013 salary and overtime claims for want of evidence. The respondents' counter-claim was not pursued in evidence. Judgment was entered for the claimant with a declaration of unfair termination, one month's salary in lieu of notice, service pay for five years at not less than 15 days per year, compensation equivalent to two months' salary, costs, and interest at court rates.

Key legal issues

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01

Whether the termination was unfair

Holding

The termination was procedurally unfair though substantively justified; the employer proved no notice to show cause, hearing or minutes.

Reasoning

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.

p. 5
02

Burden of proof in an undefended claim

Holding

The burden remains on the employee to prove unfair termination even where the respondent does not participate.

Reasoning

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.

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Remedies for unfair termination

Holding

Claimant awarded one month's notice pay, service pay for 5 years, and the equivalent of 2 months' salary under section 49(1)(c).

Reasoning

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.

p. 6
04

Whether malicious prosecution was proved

Holding

The issue was unsubstantiated as it was neither pleaded nor proved.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Declaration that termination of the Claimant's employment was unfair.
  2. 2.One month's salary in lieu of notice.
  3. 3.Service pay for 5 years at the rate of not less than 15 days for each completed year of service.
  4. 4.Equivalent of 2 months' salary as compensation for unfair termination.
  5. 5.Costs of the suit to the Claimant.
  6. 6.Interest at court rates from the date of judgment till payment in full.

Authorities

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Legislation

  • Employment Actsection 45(2), 45(4), 43(1), 43(2), 47(5), 41, 49(1)(c), 49(4)
  • Criminal Procedure Codesection 210
  • Evidence Actsections 107, 108, 109
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (10)

  • Kenya Airports Authority v Silas Obengete
    (2008) eKLR
  • Southern Highlands Tobacco v McQueen
    (1960) E.A 490
  • Barclays Bank of Kenya Limited v Julius Kiema Kenga and another
    (2019) eKLR
  • Shiveka Alielo v Kenya Post Office Savings Bank & another
    (2019) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Naima Khamis v Oxford University Press (E.A) Limited
    (2017) eKLR
  • Humphrey Munyithya Mutemi v Soluxe International Group of Hotels and Lodges Limited
    [2020] eKLR
  • Nicholus Kipkemoi Korir v Hatari Security Guards
    (2016) eKLR
  • Loice Atieno v Kenya Commercial Bank Limited
  • Postal Corporation of Kenya v Andrew K. Tanui
    (2019) eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007

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, "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.