Mburu v CIC General Insurance Limited (Cause 53 of 2019) [2023] KEELRC 807 (KLR)
The bottom line
#Kenya's Employment Court ruled CIC Insurance unfairly dismissed an employee because it withheld the investigation report before his disciplinary hearing.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in disciplinary process
The disciplinary process was unfair because the claimant attended the hearing without the investigations report and without the applicable policy documents having been issued to him; termination was therefore unlawful under section 45.
The court held that due process requires the employer to conduct investigations and share the outcome with the employee before a disciplinary hearing, citing section 41(2) of the Employment Act. The claimant's contract of employment contained no reference to policy documents as required by section 12(1), so the employer was exposed and the claimant could not be faulted for shop-floor practice. He was also denied a right of appeal contrary to section 45(5)(a).
Defamation claim
The defamation claim failed; copying senior management officers on the dismissal letter was not defamatory and circulation to social media was not particularised or proved.
The court found that the respondent, as a corporate body, copied officers such as the Group CEO, MD and GM who legitimately needed to know; such sharing could not be defamatory. The claimant did not particularise how the letter reached social media, and his witness did not address defamation to the required standard.
Remedies for unfair termination
Notice pay of ksh.40,000 under section 35, compensation of 3 months' gross wage under sections 45 and 49 for 5 years of service, and a Certificate of Service under section 51 were awarded.
On the finding that there was no due process, the court awarded notice pay based on the last gross wage of ksh.40,000 and compensation equivalent to three months' gross wage, taking into account the claimant's five years of service, and directed issuance of a Certificate of Service pursuant to section 51 of the Act.
Legal principles established
#- Part of due process before termination is that the employee be given the results of investigations before a disciplinary hearing so as to respond effectively.
- The duty to issue and explain workplace policies and procedures vests in the employer and cannot be assumed to be known by the employee.
- A denial of the right to be heard renders a decision null and void ab initio notwithstanding that the same result might have been reached.
Court orders
#- 1.A declaration that employment terminated unlawfully and unfairly
- 2.Compensation awarded at ksh.120,000
- 3.Notice pay ksh.40,000
- 4.A Certificate of Service shall issue
- 5.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 35, 41, 45, 49 and 51)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mburu v CIC General Insurance Limited (Cause 53 of 2019) [2023] KEELRC 807 (KLR)", Case Analysis (2023). Not stated in judgment (file heard together with ELRC Cause No. 54 of 2019 – Duncan Gitugo v CIC General Insurance Limited). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/807/eng@2023-03-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.