Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim filed 9th November 2018 (ELRC)· [2023] KEELRC 3111 (KLR)

Musango v DHL Express (Cause 1510 of 2018) [2023] KEELRC 3111 (KLR)

Employment and Labour Relations Court
24 November 2023
4,107 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled the employer unfairly fired an imports supervisor because it could not prove its accusations or show he got a fair hearing.

What this practically means

#

Executive summary

#
The Claimant, engaged as an Import/Export Agent and later promoted to Imports Supervisor, was suspended on 22nd January 2018 and terminated on 9th February 2018 on allegations of sanctioning importation and clearance of shipments without payment of taxes or customs waiver approval, violation of the Customs Act, breach of the Respondent's global operating procedures and failure to perform his duties. He sought Kshs 4,183,740 comprising service gratuity, notice pay, compensation for unlawful termination, shift allowance and payment for Employee of the Year 2017. The Respondent contended his service was rife with misconduct and lack of diligence, exposing it to KRA censure. The Court framed three issues: valid and fair reason, procedural fairness, and reliefs. On substance, it found the Respondent failed to substantiate the accusations: the cited invoices showed zero tax or values below the USD 50 tax exemption, one airwaybill was KRA-stamped, the Standard Global SOP Finance did not document the clearance process or the Claimant's role, his job description was not availed, and other supervisors ran the shifts. On procedure, the Respondent exhibited no Notice to Show Cause, hearing notice or disciplinary minutes, failing its burden under Sections 41 and 45(2) of the Employment Act. The termination was thus unfair. The Court awarded one month's notice pay (Kshs 119,393) and seven months' gross salary as compensation (Kshs 835,751), totalling Kshs 955,144 with interest, but declined gratuity, shift allowance and the Employee of the Year award. The Claimant received the costs of the suit.

Key legal issues

#
01

Validity and fairness of reasons for termination

Holding

The Respondent failed to prove valid and fair reasons; accusations of sanctioning shipments without tax payment were not substantiated

Reasoning

The Court examined the airwaybills cited and found several invoices showed zero tax or values below the USD 50 exemption threshold, and one was KRA-stamped. The Respondent's Standard Global SOP Finance did not document the clearance process or the Claimant's role, and the job description was not availed. Other supervisors headed the shifts, and the Respondent did not prove the disputed shipment was handled under the Claimant's direct supervision. The Respondent also failed to specify the Customs Act provision or compliance standard breached.

p. 6
02

Procedural fairness

Holding

No Notice to Show Cause, hearing notice or disciplinary minutes were exhibited; procedural fairness was not proved

Reasoning

Under Section 41(1) the employer must notify the employee of the allegations and accord a hearing. The Respondent exhibited no Notice to Show Cause, no hearing notice inviting the Claimant to the disciplinary hearing, and no minutes of the hearing. The Court could not verify whether the hearing followed Clause 11.2 of the Respondent's Disciplinary Code. The burden of proving fair procedure lay on the employer and was not discharged.

p. 7
03

Reliefs

Holding

Notice pay and seven months' compensatory damages awarded; gratuity, shift allowance and Employee of the Year award declined

Reasoning

Having found the termination unfair, the Court awarded one month's notice pay and compensatory damages equivalent to seven months' gross salary, factoring in length of service and termination circumstances. Gratuity was not contractual; shift allowance lapsed upon promotion to a managerial position; and the Employee of the Year claim lacked proof of any monetary entitlement, the Claimant having already received a trip to Cape Town.

p. 8

Legal principles established

#
  • Under Section 43(1) and Section 45(2) of the Employment Act, the employer bears the burden of proving valid and fair reasons for termination, and failure to do so renders the termination unfair
  • An employer must prove procedural fairness under Section 41 by evidence of notification of allegations and a disciplinary hearing record; absent such evidence, fair hearing is not established
  • Where allegations concern breach of statutory provisions and company procedures, the employer must specify and prove the exact provision and procedure breached

Court orders

#
  1. 1.Judgment entered in favour of the Claimant against the Respondent
  2. 2.One month's salary in lieu of notice of Kshs 119,393.00
  3. 3.Compensatory damages of Kshs 835,751.00 being seven months' gross salary
  4. 4.Total award of Kshs 955,144.00
  5. 5.Interest on the total award at court rates from the date of Judgment until payment in full
  6. 6.Claimant awarded the costs of the suit

Authorities

#

Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a) and (b)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 41(1)
  • Customs Actnot specified
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d); Article 48

Cases cited (3)

  • Muthaiga Country Club vs Kudheiha Workers
    (2017) eKLR
  • Samuel Kalomit Murkomen vs Telkom Kenya Limited
    (2017) eKLR
  • Joseph Mwaniki Nganga vs United Millers Limited
    (2022) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; judgment delivered under Article 159(2)(d), Article 48 of the Constitution and Section 1B of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Musango v DHL Express (Cause 1510 of 2018) [2023] KEELRC 3111 (KLR)", Case Analysis (2023). Memorandum of Claim filed 9th November 2018 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3111/eng@2023-11-24

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