Mito v Kisumu National Polytechnic (Cause 171 of 2018) [2023] KEELRC 2974 (KLR)
The bottom line
#A Kenyan court ruled the Polytechnic followed fair dismissal procedures but had no valid reason to fire the employee, awarding him over Kshs 101,000.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the summary dismissal
The dismissal complied with sections 35(1)(c) and 41 of the Employment Act; the Claimant was notified of allegations, responded in writing, attended a hearing, made representations and a union official was present
The show-cause and suspension letters were copied to the trade union shop steward. Although the hearing invitation was not copied to the union, the minutes showed the Staff Union chairperson was present, the Claimant made representations, and he had notice of the allegations. The Court held this met the statutory requirements of procedural fairness.
Substantive fairness - willful neglect of duty
Not proved; the ground was not in the show-cause letter and lacked corroborative evidence
Willful neglect of duty was not among the reasons in the show-cause letter. Apart from a memo dated 21 March 2017 from the head of department, the Respondent produced no corroborative evidence that the Claimant idled away or willfully neglected duties, so the ground was unproved.
Substantive fairness - absence from duty and insubordination
Absence from work without permission was not a valid or fair reason; insubordination was not proved
The Claimant produced a court attendance bond for 27 March 2017 and a medical sick-off from 28 March 2017, constituting lawful cause for absence from 27 March. For 23 to 26 March, he explained he was on off duty per the library shift schedule, reported on 24 March, and obtained permission to attend court. The Respondent did not deny the deployment letter, and insubordination was not proved.
Remedies and compensation
Four months' gross wages as compensation, one month's pay in lieu of notice, and accrued leave for the last 18 months awarded; service pay, overtime and reinstatement declined
Considering the Claimant's service from 2014 to 2017, the Court awarded four months' gross wages (Kshs 73,528/-) as compensation and one month's basic salary in lieu of notice. Leave records not produced, so accrued leave was allowed for 18 months. Service pay was excluded by NSSF contributions; overtime lacked evidential foundation; reinstatement was declined as three years had elapsed.
Legal principles established
#- An employer bears the burden of proving the validity and fairness of a termination of employment
- Procedural fairness is satisfied where an employee is informed of the allegations, responds in writing, attends a disciplinary hearing, makes representations, and a union official is present
- Where an employer fails to produce leave records, the court will presume accrued leave under sections 10(3) and 28(4) of the Employment Act, 2007
Court orders
#- 1.Declaration that the Respondent unfairly terminated the Claimant's employment
- 2.Award of compensation of Kshs 73,528/- (equivalent of 4 months' gross wages)
- 3.Award of pay in lieu of notice of Kshs 11,370/- (1 month's basic salary)
- 4.Award of accrued leave of Kshs 17,055/-
- 5.Total award of Kshs 101,953/- to attract interest at court rates if not paid within 30 days
- 6.Claimant to have costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (Employment and Labour Relations Court); Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mito v Kisumu National Polytechnic (Cause 171 of 2018) [2023] KEELRC 2974 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2974/eng@2023-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.