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ELRCPartially AllowedCause No 1956 of 2017· [2023] KEELRC 1124 (KLR)

Musango v Metro Logistics Limited (Cause 1956 of 2017) [2023] KEELRC 1124 (KLR)

Employment and Labour Relations Court
10 May 2023
JGJACOB GAKERI
3,849 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 a night guard's dismissal unfair because his employer never gave him a hearing or proved any valid reason.

What this practically means

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Executive summary

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The Claimant sued for unfair and unlawful termination, alleging he was employed in November 2014, rose from Security Guard to Storekeeper, and was suspended by word of mouth on 25th April 2017 following a security incident, never recalled, and never subjected to a disciplinary hearing. The Respondent denied the 2014 employment and the alleged contract terms, asserting the Claimant was dismissed on 29th April 2017 for failing to cooperate with police investigations into a missing item. The court framed three issues: the date of employment, the fairness of termination, and entitlement to reliefs. On the first, it found the employment commenced on 1st April 2016, the Claimant failing to prove the earlier date on a balance of probabilities. On fairness, the court held the Respondent failed to prove a valid and fair reason: the dismissal letter lacked particulars of non-cooperation, the police officer was not called, the theft was never investigated, and the allegation that the loss occurred during the day shift while the Claimant worked nights was uncontroverted. The court also found the termination procedurally defective under Section 41 of the Employment Act, as the Claimant was never heard, a fact confirmed by the Respondent's own witness. The court declared the termination unfair and awarded one month's notice pay (Kshs.35,000), house allowance at 15% for one year (Kshs.68,250), three months' equivalent salary as compensation (Kshs.105,000), a certificate of service, costs and interest. Discrimination declaration, April 2017 salary, leave allowance, service pay, general damages and 12 months' compensation were all declined.

Key legal issues

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01

Date of commencement of employment

Holding

Employment found to have commenced on 1st April 2016, not November 2014

Reasoning

The Claimant's contract was dated 1st April 2016; he produced no bank, NSSF or NHIF statements to support the earlier date, and RWI admitted the 2016 document was valid. The court found no evidence of an employment relationship before April 2016.

p. 5
02

Substantive justification for termination

Holding

Respondent failed to prove a valid and fair reason

Reasoning

The dismissal letter lacked particulars of the alleged non-cooperation, no evidence showed when or by whom the Claimant was summoned, the police officer was not called, and the dismissal preceded any completed investigation. The allegation of theft during the day while the Claimant was a night guard was not controverted.

p. 7
03

Procedural fairness of termination

Holding

Termination was procedurally defective for breach of Section 41

Reasoning

RWI confirmed the Claimant was never taken through a disciplinary hearing or heard. The four elements of Section 41 (explanation of grounds, hearing, presence of another employee, consideration of representations) were not met, rendering the termination procedurally unfair.

p. 7
04

Entitlement to reliefs

Holding

Declaration of unfair termination, notice pay, house allowance for one year, 3 months' compensation, certificate of service and costs granted; other heads declined

Reasoning

The court assessed each head against the evidence: notice pay granted as no Section 35/36 notice was shown; 15% house allowance for 13 months awarded; leave, service pay, April salary, discrimination declaration and general damages declined for want of proof or statutory bar; compensation fixed at 3 months under Section 49(4).

p. 9

Legal principles established

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  • Termination must be both substantively justified and procedurally fair
  • Section 41 hearing process is mandatory before termination
  • The burden of justifying grounds for termination rests on the employer

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 Kshs.35,000.00
  3. 3.House Allowance of Kshs.68,250.00
  4. 4.Equivalent of 3 months salary Kshs.105,000.00
  5. 5.Certificate of service
  6. 6.Costs of the suit
  7. 7.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Sections 35 and 36
  • Employment Act, 2007Section 35(5), 35(6)(d)
  • Employment Act, 2007Section 31
  • Employment Act, 2007Sections 49(1)(c) and 49(4)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Civil Procedure ActSection 1B

Cases cited (10)

  • Peter Mwaura & another v National Bank of Kenya
    [2020] eKLR
  • Kiptum Nyaoke v Kenya Posts Office Savings Bank
    [2022] eKLR
  • Wycliffe Sagara Radagi v Shirdi Trading Stores Ltd
    (2018) eKLR
  • Robert Indiazi v Tembo Sacco Ltd
    (2018) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Naima Khamis v Oxford University Press (EA) Ltd
    [2017] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    [2017] eKLR
  • Loice Atieno v Kenya Commercial Bank
    [2013] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • Grains Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Musango v Metro Logistics Limited (Cause 1956 of 2017) [2023] KEELRC 1124 (KLR)", Case Analysis (2023). Cause No 1956 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1124/eng@2023-05-10

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