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ELRCPartially AllowedCause No 720 of 2018· [2023] KEELRC 2696 (KLR)

Nyakundi v Ready Consultancy Company Limited (Cause 720 of 2018) [2023] KEELRC 2696 (KLR)

Employment and Labour Relations Court
27 October 2023
3,558 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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An employer can have a good reason to fire you but still lose in court if it skips the required fair disciplinary hearing.

What this practically means

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Executive summary

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The Claimant, a machine attendant employed contractually by the Respondent from February 2015, was stopped from working on 23rd January 2018 after a mixing machine he was operating was found overloaded by 94 kilograms beyond its 70-kilogram capacity, causing a breakdown. He sued for declarations of unlawful termination, twelve months' compensation, notice pay, January 2018 salary, service pay, leave pay, interest at 25%, a certificate of service and costs. The Respondent, a labour provider to PATCO, maintained it had summarily dismissed him for gross negligence under Section 44 of the Employment Act after due process. The court framed three issues: substantive justification, procedural fairness, and reliefs. On substance, it held the Claimant's own written admission of overloading, corroborated by the PATCO Chief Engineer, established a valid and fair reason, and his defence that he was merely completing a colleague's work did not excuse continuing to overload the machine. On procedure, however, the Respondent failed to prove compliance with Section 41: the disciplinary minutes recorded only findings without the Claimant's explanations, and no evidence showed the Claimant was invited in writing, informed of his right to be accompanied, or given reasonable time. The termination was therefore substantively justified but procedurally unfair. The court awarded one month's notice pay, one month's compensatory damages, prorated leave pay, service pay for two years, unpaid January 2018 salary, interest at court rates, costs, and a certificate of service, totalling Kshs 56,437.45.

Key legal issues

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01

Whether there was a valid and fair reason for termination

Holding

Yes - the Claimant negligently overloaded a machine of 70kg capacity by 94kg, giving the employer a genuine belief of improper performance of duty.

Reasoning

Under Sections 43 and 45(2)(a) and (b) of the Employment Act, the employer must prove reasons it genuinely believed to exist on a balance of probability. The Claimant admitted in his show cause response that he overloaded the machine, an admission corroborated by PATCO's Chief Engineer. As an experienced machine attendant of nearly three years, he ought to have confirmed the load before adding more. The employer genuinely believed he acted carelessly, satisfying the substantive test.

p. 5
02

Whether the termination followed fair procedure

Holding

No - the Respondent failed to prove compliance with Section 41 of the Employment Act.

Reasoning

Section 45(2)(c) places the burden of proving fair procedure on the employer. The disciplinary minutes contained only findings without the Claimant's explanation; no documentary evidence showed the Claimant was invited to the hearing, notified of his right to be accompanied, or given reasonable time. Oral testimony that he was invited by phone call was insufficient. In the absence of proof of all Section 41 elements, the dismissal was procedurally unfair.

p. 6
03

Entitlement to reliefs

Holding

Partly - notice pay, one month's compensation, prorated leave pay, service pay, unpaid January 2018 salary, costs and a certificate of service awarded.

Reasoning

Procedural unfairness warranted only one month's compensation given the short service and six months remaining on the contract. The January 2018 salary succeeded because the Respondent did not prove payment; the assertion that January salary was paid on 3rd January 2018 was implausible. Service pay succeeded absent proof of NSSF exclusions under Section 35(6), and leave pay succeeded absent leave records under Section 74(1)(f).

p. 7

Legal principles established

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  • An employer bears the burden of proving both substantive justification and procedural fairness on a balance of probability; substantive justification does not cure procedural unfairness under Sections 41 and 45 of the Employment Act.
  • Where an employer fails to exhibit leave records or evidence of NSSF remittances, the employee's claims for leave pay and service pay succeed.

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs 16,847.00
  2. 2.Compensatory damages of Kshs 16,847.00 equivalent to one month's gross salary
  3. 3.Unpaid leave prorated at six months of Kshs 5,896.45
  4. 4.Service pay for two completed years of service of Kshs 16,847.00
  5. 5.Total award of Kshs 56,437.45 with interest at court rates from the date of Judgment until payment in full
  6. 6.Costs of the suit to the Claimant
  7. 7.Certificate of Service to issue within 30 days of the Judgment under Section 51(1) of the Employment Act

Authorities

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Legislation

  • Employment ActSections 35(6), 41, 43, 43(2), 44, 45(2)(a) and (b), 45(2)(c), 51(1), 74(1)(f)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (3)

  • Josephat Otieno Kongo vs Riley Services Limited
  • Ben Panhill Sifuna vs Urban Roads Authority
  • National Bank of Kenya vs Anthony Njue John
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act over claims arising out of termination of employment

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, "Nyakundi v Ready Consultancy Company Limited (Cause 720 of 2018) [2023] KEELRC 2696 (KLR)", Case Analysis (2023). Cause No 720 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2696/eng@2023-10-27

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