Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedNot stated in the judgment· [2023] KEELRC 2166 (KLR)

Sombo v General Plastics Limited (Cause 2059 of 2016) [2023] KEELRC 2166 (KLR)

Employment and Labour Relations Court
20 September 2023
2,786 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that firing only one of two employees who fought at work, without a fair process, was unfair and awarded the worker substantial compensation.

What this practically means

#

Executive summary

#
The Claimant, employed as a radio controller from 1994 to 2016 and earning Kshs 22,161.06 monthly, sued for severance pay, July salary, leave days, damages for unfair termination, a certificate of service, costs and interest after his summary dismissal on July 30, 2016. The dismissal followed a physical altercation on July 15, 2016 with a co-worker, John, who had overstayed his lunch break. The Respondent maintained the Claimant fought with an assistant during working hours, was issued a notice to show cause, admitted the misconduct, was heard by a disciplinary committee and lawfully summarily dismissed for gross misconduct under section 44 of the Employment Act. The Claimant argued the process was procedurally flawed - the show cause letter came after the disciplinary appearance, he was not allowed representation, investigations were incomplete, and John, the aggressor, was retained in employment while he alone was punished. The court found the disciplinary process one-sided and predetermined, accommodating John who was aligned to supervisor Martin Mwendwa, and held that punishing only one of two employees involved was unfair. It found the termination unfair and unjust within section 43 of the Employment Act, noting the Claimant's 22 years of diligent, previously unblemished service. The court awarded severance pay of Kshs 357,540/-, July salary of Kshs 22,161.60, leave days of Kshs 22,161.60, three months' compensation of Kshs 66,483.80, a certificate of service, costs of the suit and interest at court rates from the date of judgment until payment in full.

Key legal issues

#
01

Whether the termination was substantively and procedurally fair

Holding

The termination was unfair and unjust under section 43 of the Employment Act; the disciplinary process was one-sided and predetermined, accommodating the aggressor John while dismissing the Claimant.

Reasoning

The court found both employees were involved in the altercation but only the Claimant was punished, while John - who overstayed his lunch break and was aligned to supervisor Martin Mwendwa - was retained. The Respondent did not call eyewitnesses or complete its investigations transparently. The Claimant's 22 years of unblemished service and the Respondent's failure to demonstrate fairness rendered the summary dismissal substantively and procedurally unfair.

p. 5
02

Whether the Claimant is entitled to the reliefs sought

Holding

Yes - severance pay, July salary, leave days, three months' compensation for unfair termination, certificate of service, costs and interest were awarded.

Reasoning

Having found the dismissal unfair and unjust, the court awarded the reliefs claimed: severance pay at 15 days' salary per completed year for 22 years, unpaid July salary, leave days earned, compensation equivalent to three months' salary (reduced from the maximum twelve), a certificate of service, costs of the suit and interest at court rates from the date of judgment until payment in full.

p. 5

Legal principles established

#
  • Termination that singles out one of two employees involved in a workplace altercation, without demonstrable fairness, is unfair and unjust within the meaning of section 43 of the Employment Act.
  • An employer must demonstrate fairness in the disciplinary process; inability to do so renders a dismissal unjustified even after long unblemished service.

Court orders

#
  1. 1.Severance pay for the years worked – Kshs 357,540/-
  2. 2.Salary for the month of July – Kshs 22,161.60
  3. 3.Leave days earned – Kshs 22,161.60
  4. 4.Compensation for unlawful, unfair and wrongful termination of employment set at 3 months – Kshs 66,483.80
  5. 5.Issuance of a certificate of service
  6. 6.Costs of the suit to the Claimant
  7. 7.Interest at court rates on the sums in (a), (b), (c) and (d) from the date of judgment till payment in full

Authorities

#

Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 44(g)
  • Employment Actsection 40(1)(f)
  • Employment Actsection 47(5)
  • Constitution of Kenya, 2010Article 49

Cases cited (7)

  • Patrick Abuga v ICPAK
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Mary Mutanu Mwendwa v Ayuda
    [2013] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2013] eKLR
  • Joseph Mwaniki Nganga v United Millers Limited
    [2022] eKLR
  • Kenfreight (EA) Limited v Benson K Nguti
    [2016] eKLR
  • Meshack Auta Ongeri v Nyamache Tea Factory Company Limited
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 40, 41, 43, 44, 47(5))

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Sombo v General Plastics Limited (Cause 2059 of 2016) [2023] KEELRC 2166 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2166/eng@2023-09-20

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