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ELRCPartially AllowedNot stated in the extract· [2023] KEELRC 2887 (KLR)

Mutabari v Unga Farm Care (EA) Limited (Cause 1570 of 2018) [2023] KEELRC 2887 (KLR)

Employment and Labour Relations Court
10 November 2023
4,908 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a security guard's firing was justified by his conduct, but the company still had to pay him because it skipped proper disciplinary procedure.

What this practically means

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Executive summary

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The Claimant, employed as a security officer by the Respondent from 5th September 2016, claimed Kshs 6,791,400 for wrongful, unfair and unlawful summary dismissal on 9th August 2018, plus leave, discrimination, harassment and unfair labour practice damages. The Respondent maintained the dismissal was lawful and fair, following complaints that the Claimant assaulted and mistreated outsourced employees during interrogations. The Court framed three issues: substantive justification, procedural fairness, and entitlement to reliefs. On substantive justification, the Court found the written statements of all persons present at the interrogation sessions consistent in confirming that the Claimant slapped two employees and forced them to sit on the floor; his version failed the credibility contest. Following Kenya Revenue Authority vs Reuwel Waithaka Gitahi, the Court held the applicable standard was balance of probability, and the Respondent proved valid, fair reasons related to the Claimant's conduct. On procedure, however, the Respondent produced no evidence of reasonable notification of the disciplinary hearing or of the right to be accompanied. Applying Nebert Mandala Ombajo vs ICPAK, the Court found the process flawed and the termination procedurally unfair. The Claimant was awarded compensatory damages of Kshs 390,000 (three months' gross salary) with interest at court rates from the date of judgment and costs of the suit. The leave claim was declined because the termination letter promised leave compensation and the period was not pleaded; the discrimination, harassment and unfair labour practice claim failed for want of proof and better particulars.

Key legal issues

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01

Substantive justification of termination

Holding

Termination was substantively justified as the Respondent proved on a balance of probabilities valid reasons related to the Claimant's conduct

Reasoning

Consistent witness statements from all persons present at the interrogation sessions confirmed the Claimant slapped two employees and forced them to sit on the floor; the Claimant's version failed the credibility contest. Employment investigations need not match criminal-process precision, the standard being balance of probability. Firsthand witness accounts gave the employer reasonable and sufficient grounds to dismiss.

p. 7
02

Procedural fairness of the disciplinary process

Holding

The process was procedurally unfair: no evidence of reasonable notice of the hearing or of informing the Claimant of his right to be accompanied

Reasoning

Although the Claimant responded to a show-cause notice, there was no evidence of a notification of the disciplinary hearing; the hearing came nearly two months after the alleged conduct, and the Claimant plausibly testified he was telephoned the same morning and did not know he faced a disciplinary panel. Section 41 requirements were therefore not met, rendering the termination procedurally unfair.

p. 9
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Reliefs

Holding

Compensatory damages of three months' gross salary awarded; leave and discrimination/harassment claims declined

Reasoning

Given procedural unfairness despite substantive justification, compensation of three months' gross salary was awarded, factoring in length of service and the Claimant's own contribution to the termination. The leave claim failed because the termination letter promised leave compensation and the Claimant did not plead the uncompensated period; the discrimination and harassment claim failed for want of proof.

p. 9

Legal principles established

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  • The standard of proof in employment termination is on a balance of probability, and the employer need only prove reasons it genuinely believed to exist
  • An employer must give reasonable notice of a disciplinary hearing and inform the employee of the right to be accompanied; failure renders the termination procedurally unfair

Court orders

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  1. 1.The Claimant is awarded compensatory damages in the sum of Kshs 390,000.00 which sum is equivalent to three (3) months of his gross salary.
  2. 2.Interest on the amount in (a) at court rates from the date of Judgment until payment in full.
  3. 3.The Claimant shall have the costs of the suit.

Authorities

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Legislation

  • Employment ActSection 45(2)(a) and (b)
  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 41
  • Employment ActChapter 44(4)(d)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (2)

  • Kenya Revenue Authority vs Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Nebert Mandala Ombajo vs Institute of Certified Public Accountants of Kenya (ICPAK)
    Nakuru Civil Appeal No. 62 of 2018
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 41, 43, 45); judgment does not expressly cite the establishing provision

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, "Mutabari v Unga Farm Care (EA) Limited (Cause 1570 of 2018) [2023] KEELRC 2887 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2887/eng@2023-11-10

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