Havyarimana v Permanent Secretariat of the Transit and Transport Co-ordination Authority of the Northern Corridor & another (Cause 922 of 2016) [2023] KEELRC 2642 (KLR)
The bottom line
#Kenya's Employment Court ruled an employee was unfairly fired because his employer never gave him a proper hearing, awarding nine months' salary plus costs.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
Termination was procedurally unfair as Section 41's mandatory procedure was not followed; the Claimant only filled a questionnaire and was not notified of a right to be accompanied.
Both the Claimant and RW-1 confirmed the disciplinary meeting involved only a questionnaire, with no verbal hearing. The Claimant was not told he could be accompanied by a fellow employee. Section 41 requires explanation of reasons, opportunity to be heard and to have a representative present. The committee's report, not a hearing, formed the basis of termination.
Substantive justification for the termination
Termination was substantively unfair; the allegations of dishonesty, disrespect, insubordination and misconduct were not proved.
The Respondents did not demonstrate that anything done by the Claimant contravened the 1st Respondent's Rules and Regulations or the law, nor that termination was the lawful penalty. Under Sections 43 and 45 the burden of proving valid reasons lies on the employer, which they failed to discharge.
Entitlement to reliefs
Only compensation of nine months' salary (US$ 47,448) and a proper certificate of service awarded; all other heads declined.
Having found unfair termination, the Court awarded nine months' salary as compensation considering the circumstances. Other monetary heads were not specifically pleaded or proved; reinstatement was impracticable after over three years; the certificate of service violated Section 51(1).
Legal principles established
#- An employer terminating for misconduct must comply with the mandatory hearing procedure in Section 41 of the Employment Act, including explaining the reasons and hearing representations.
- Under Section 43(1) of the Employment Act, the employer bears the burden of proving the reasons for termination, failing which the termination is unfair.
- Successive disciplinary actions over the same allegations (warning, suspension and termination) are in themselves unfair.
- A certificate of service may only contain the particulars prescribed by Section 51(1) of the Employment Act; reasons for termination may not be included.
Court orders
#- 1.Declaration that termination of the Claimant's employment was procedurally and substantively unfair
- 2.Judgment entered for the Claimant against the Respondents, jointly and severally, for US$ 47,448 being nine months' salary as compensation for unfair termination
- 3.The 1st Respondent to issue the Claimant with a proper certificate of service pursuant to Section 51(1) of the Employment Act within thirty days of judgment
- 4.The Claimant is awarded costs of the suit and interest at Court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act; prior jurisdictional objection upheld by O.N. Makau, J on 3/11/2017 and set aside by the Court of Appeal in Civil Appeal No. 103 of 2018 (judgment of 7/3/2019)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Havyarimana v Permanent Secretariat of the Transit and Transport Co-ordination Authority of the Northern Corridor & another (Cause 922 of 2016) [2023] KEELRC 2642 (KLR)", Case Analysis (2023). Cause No 922 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2642/eng@2023-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.