Muchoki v Mpesa Foundation Academy (Cause 2219 of 2017) [2023] KEELRC 708 (KLR)
The bottom line
#Kenya's Employment Court ruled the academy unfairly fired its deputy head of academics, but awarded only three months' salary because reinstatement was time-barred.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent had a valid and fair reason to terminate the Claimant's employment (substantive fairness)
The Respondent failed to prove a valid and fair reason; the stated reasons were inconsistent, the performance review was incomplete, and the timing of termination was suspicious.
The termination letter did not state the reason now advanced by the Respondent. The final warning letter did not require a response and set no time limit, yet termination followed within 24 hours. The Mid-Year Performance Review was unsigned, undated, and lacked the supervisor's comments, showing the claimant had fallen out of favour with the Director of Teaching and Learning. The court found the Respondent's mind was made up and the claimant's response was inconsequential.
Whether the termination complied with Section 41 of the Employment Act (procedural fairness)
Section 41 was not complied with; there was no notice or invitation to a disciplinary hearing and no hearing at all.
The meeting of 14th September 2017 was, per the HR Manager's email, not a disciplinary meeting, and no meeting was scheduled for 15th September 2017. A proper invitation to a disciplinary hearing must state the reason, date, venue and the employee's right to be accompanied. The Respondent produced no invitation or minutes. The final warning was prepared before the meeting and thus was not a consequence of it.
Entitlement to remedies
Claimant entitled only to compensation equivalent of 3 months' gross salary under Section 49(1)(c); reinstatement, severance, unemployability damages, unfair labour practice damages and general damages declined.
The court weighed length of service (about 1 year 7½ months), desire to continue employment, clean disciplinary record, claimant's contribution to her termination by failing to disclose a relative employed in her department, and failure to appeal, concluding that the equivalent of 3 months' gross salary was fair compensation.
Legal principles established
#- For a termination of employment to be fair it must be both substantively justifiable and procedurally fair under Sections 43, 45, 47(5) and 41 of the Employment Act.
- An employer who alleges poor performance as the basis of termination bears an evidentiary burden which is heightened where the performance appraisal relied on is incomplete.
- The procedural elements of Section 41 of the Employment Act are mandatory and include explanation of grounds, hearing and consideration of representations.
- An unilaterally imposed, less than 24-hour period to respond to a final warning letter fails the test of reasonableness.
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for the equivalent of 3 months' gross salary as compensation under Section 49(1)(c) of the Employment Act.
- 2.Costs of the suit to the Claimant.
- 3.Interest at court rates from the date of judgment till payment in full.
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 (Section 12) and the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muchoki v Mpesa Foundation Academy (Cause 2219 of 2017) [2023] KEELRC 708 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi), Memorandum of Claim filed 8th November 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/708/eng@2023-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.