Njuguna v K-Unity Savings & Credit Co-operative (Employment and Labour Relations Cause 265 of 2018) [2023] KEELRC 2984 (KLR)
The bottom line
#A Kenyan court ruled a Sacco's summary dismissal of its branch manager unfair because it proved neither a valid reason nor a fair hearing, awarding him Kshs 578,940 plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was substantively and procedurally fair
Dismissal was unfair - the Respondent failed to prove a valid reason and failed to accord the Claimant a hearing under section 41
The Respondent alleged loss of Kshs 670,000 from an irregularly discounted cheque but produced no audited accounts or records, and there were no customer complaints. RW1 admitted there was no documentation of a show-cause notice or disciplinary hearing. The Claimant was ambushed with the dismissal letter without a hearing or written invitation with the right to be accompanied. Both substantive justification under sections 43, 44 and 45 and procedural fairness under section 41 were therefore not proved.
Whether the counterclaim for special damages was proved
Counterclaim dismissed as the alleged loss of Kshs 1,195,021.43 was not proved
RW1 conceded under cross-examination that no audited accounts were produced to evidence the alleged loss. Special damages must be pleaded and strictly proved; without audited accounts or other documentary evidence the claim fails. The court also noted the absence of any police investigation into the alleged huge loss.
Quantum of remedies for unfair dismissal
Claimant awarded one year's accrued leave pay and 4 months' salary as compensation
Leave pay of Kshs 115,788 was unopposed and unrebutted. For compensation, the court was guided by section 49 of the Employment Act, including the extent to which the employee contributed to his misfortune, and equity between employer and employee, and settled on 4 months' gross salary rather than the 12 months sought. The withheld October salary claim failed as the Claimant admitted being paid.
Legal principles established
#- For a summary dismissal to be fair and lawful, the employer must prove both substantive justification and procedural fairness
- The burden of justifying the lawfulness of a termination, both substantively and procedurally, lies with the employer
Court orders
#- 1.Declaration that the Claimant's summary dismissal was unfair
- 2.Award of 4 months' salary (Kshs 468,152) as compensation for unlawful termination
- 3.Award of Kshs 115,788 being one year's accrued leave pay
- 4.Claimant to be provided with certificate of service within 30 days
- 5.Counterclaim dismissed
- 6.Total award of Kshs 578,940 plus interest at court rates from date of judgment till payment in full
- 7.Costs of the suit awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njuguna v K-Unity Savings & Credit Co-operative (Employment and Labour Relations Cause 265 of 2018) [2023] KEELRC 2984 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2984/eng@2023-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.