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ELRCPartially AllowedNot stated in the judgment text provided· [2023] KEELRC 2318 (KLR)

Kerubo v Omega Risk Management Ltd (Employment and Labour Relations Cause 122 of 2018) [2023] KEELRC 2318 (KLR)

Employment and Labour Relations Court
3 October 2023
HWHellen Wasilwa
2,947 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who fires an employee without a fair disciplinary hearing must pay compensation, even where the alleged misconduct seems serious.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 30th October 2010 as a prevention of loss officer at Tuskys Magic Supermarket, Nakuru Branch, was summarily dismissed by letter dated 3rd March 2018 after being found frisked at the staff exit in possession of promotional shopping bags labelled 'Rina', allegedly received from a Tuskys staff member, Leonard Cheruiyot. She claimed unfair termination and breach of Articles 41, 47 and 50(1) of the Constitution, plus payment of accrued dues, a certificate of service and release of her personal effects. The respondent defended the dismissal as justified under its code of conduct, which treated soliciting or receiving gifts as a major violation attracting summary dismissal, and argued the claimant was accorded due process at branch level and given 14 days to appeal. The court found decisive the admission by RW1, the respondent's Risk manager, that the claimant was found guilty and not entitled to any disciplinary hearing. That admission contravened section 41 of the Employment Act, which obliges an employer to explain reasons for termination and hear and consider the employee's representations before summary dismissal. The court held the dismissal unfair under section 45(2) for want of due process. It awarded one month's salary in lieu of notice (Kshs 12,597) and six months' salary as compensation (Kshs 75,582), totalling Kshs 88,179 less statutory deductions, ordered issuance of a certificate of service, and awarded the claimant costs plus interest at court rates from the date of judgment. The claimant's other monetary claims and requests for declarations and release of personal effects were not granted in the final orders. The judgment was dated and delivered in open court on 3rd October 2023 by Hon. Lady Justice Hellen Wasilwa.

Key legal issues

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01

Whether the summary dismissal without a disciplinary hearing was procedurally fair

Holding

The dismissal was procedurally unfair because the claimant was not subjected to any fair hearing; RW1's admission that she was not entitled to a disciplinary hearing contravened section 41 of the Employment Act.

Reasoning

RW1 admitted the claimant was found guilty and not entitled to any disciplinary hearing. That admission contravenes section 41 of the Employment Act, which requires the employer to explain the reasons for termination and hear and consider the employee's representations before summary dismissal. Without such a hearing, the procedural fairness limb of section 45(2) was not satisfied, rendering the dismissal unfair.

p. 6
02

Whether the termination was unfair under section 45(2) of the Employment Act

Holding

The termination was unfair for lack of due process, entitling the claimant to compensation.

Reasoning

Section 45(2) requires the employer to prove a valid and fair reason and that the termination followed a fair procedure. Although the respondent asserted a code of conduct violation, the absence of any hearing meant the employer failed to prove procedural fairness. The court therefore found for the claimant and awarded notice pay and six months' compensation under section 49.

p. 6

Legal principles established

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  • An employer must, before terminating or summarily dismissing an employee on grounds of misconduct, explain the reasons and hear and consider the employee's representations as required by section 41 of the Employment Act; failure to do so renders the termination unfair under section 45(2).

Court orders

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  1. 1.1 month salary in lieu of notice of Kshs 12,597
  2. 2.6 months' salary as compensation for unfair dismissal, Kshs 75,582
  3. 3.Total of Kshs 88,179 less statutory deductions
  4. 4.Issuance of certificate of service
  5. 5.Respondents shall pay costs of this suit plus interest at court rates with effect from the date of the Judgment

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 47, 49, 50(1)
  • Employment Act, 2007Sections 5(3), 41(1), 41(2), 42(1), 44(2), 44(3), 44(4), 45(1), 45(2), 51

Cases cited (6)

  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eklr
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eklr
  • Naomi Wangui Kungu V Board of Governors SCLP Samaj School
    [2022] eklr
  • Republic v Ghana Railways Corporation
  • CFC Stanbic Bank Limited V Danson Mwashako Mwakuwoma
    [2015] eklr
  • Kenya Power & Lighting company Limited Vs Aggrey Lukorito Wasike
    [2017] eklr
Jurisdiction invoked
Articles 41, 47 and 50(1) of the Constitution and the Employment Act (first-instance employment and labour relations 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, "Kerubo v Omega Risk Management Ltd (Employment and Labour Relations Cause 122 of 2018) [2023] KEELRC 2318 (KLR)", Case Analysis (2023). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2318/eng@2023-10-03

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