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ELRCPartially AllowedNot stated on the face of the judgment· [2023] KEELRC 1404 (KLR)

Mwakulomba v Tahir Sheikh Said Transporters (T.S.S) Limited (Cause 923 of 2017) [2023] KEELRC 1404 (KLR)

Employment and Labour Relations Court
8 June 2023
MMM. MBARŨ
564 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled an employer cannot lawfully fire an employee without first giving them notice and a chance to be heard.

What this practically means

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Executive summary

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The claimant, employed on June 2, 2013 as a claims manager at Ksh. 35,000 per month and last earning Ksh. 57,678 (or 57,857 as pleaded), sued for unfair termination after being summarily dismissed. He claimed he was instructed to direct the Kenya Shipping Clearing and Warehouses Workers Union to dismiss employees, declined, and was then threatened with a warning notice dated 2nd November 2016, accused of failing to apply for off-duty leave, and eventually advised by the director in January 2017 not to report to work as he had been summarily dismissed. The respondent did not enter appearance or file a response despite service of the Memorandum of Claim filed on December 18, 2017. The claimant testified and filed work records. The court held that an employee must be taken through due process before termination, applying Pius Machafu Isindu v Lavington Security Guards Limited on sections 43, 45 and 47(5) and the mandatory notification and hearing requirement of section 41 of the Employment Act, 2007. Finding no evidence of a hearing, the court held the termination was unfair contrary to section 45. It awarded notice pay of Ksh. 57,678 under section 35 and compensation of one month's gross wage of Ksh. 57,678, declining the 12 months' compensation sought. The claim for gratuity/service pay for 4 years failed because the claimant's own payment statements showed no union deductions, only NSSF and NHIF remittances. Each party was ordered to bear own costs. Judgment delivered at Mombasa on June 8, 2023.

Key legal issues

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01

Whether the termination was procedurally fair

Holding

The termination was unfair under section 45 of the Employment Act, 2007 as there was no evidence of a hearing

Reasoning

The claim was unchallenged as the respondent did not enter appearance or file a response. The claimant testified and filed work records. Applying section 41 of the Employment Act, notification and hearing before termination are mandatory; their absence rendered the summary dismissal unfair contrary to section 45, relying on Pius Machafu Isindu v Lavington Security Guards Limited.

p. 2
02

Entitlement to service pay/gratuity

Holding

The claim for gratuity or service pay failed because the claimant had no union deductions

Reasoning

Although the claimant filed a CBA between the respondent and the Kenya Shipping, Clearing and Warehouses Workers Union and payment statements showing union dues, his own payment statements for July and August 2016 showed no union deductions, only NSSF and NHIF remittances, disqualifying him from service pay.

p. 2

Legal principles established

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  • An employer must prove the reasons for termination, that they are valid and fair, and must follow the mandatory notification and hearing process under section 41 of the Employment Act before termination
  • Termination without a hearing amounts to unfair termination contrary to section 45 of the Employment Act

Court orders

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  1. 1.Judgment entered for the claimant against the respondent
  2. 2.Compensation awarded at Ksh. 57,678 (one month's gross wage)
  3. 3.Notice pay awarded at Ksh. 57,678
  4. 4.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 35
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 47(5)

Cases cited (1)

  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 35, 41, 43, 45, 47(5) applied)

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, "Mwakulomba v Tahir Sheikh Said Transporters (T.S.S) Limited (Cause 923 of 2017) [2023] KEELRC 1404 (KLR)", Case Analysis (2023). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1404/eng@2023-06-08

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