Wafula v Africa Blooms Limited (Cause 29 of 2019) [2023] KEELRC 3167 (KLR)
The bottom line
#A Kenyan court ruled a farm worker's dismissal unfair because the employer held the disciplinary hearing before he could respond in writing, awarding him Kshs 264,467.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent had a valid reason for terminating the claimant
The respondent had genuine, sufficient and reasonable grounds under Section 44(4)(c) & (g) of the Employment Act
The claimant admitted the generator-pump was missing, that he had no record of its removal for repair, and that he borrowed pumps from neighbouring farms without authority. His shifting explanations (sold as scrap, then taken for repairs) justified the respondent's suspicion of theft, sale or negligent loss. The court therefore did not fault the initiation of the disciplinary process.
Whether the procedure adopted was fair
The procedure fell far short of natural justice under Article 47 of the Constitution and the Fair Administrative Action Act
The show-cause letter did not inform the claimant of his right to call witnesses; a hearing was held on 26th February, 2019, the same day as the show-cause and before his written response of 1st March, 2019 was received; no minutes of an 'actual' disciplinary hearing were produced; and the termination letter did not mention his response, rendering it a formality.
Entitlement to notice pay and the applicable salary
One month's notice pay awarded at the actual gross salary of Kshs. 47,000/=, not the pleaded Kshs. 37,000/=
The pay-slip for February, 2019 produced as an exhibit showed a gross salary of Kshs. 47,000/=. In the interest of the overriding duty to do justice, the court awarded the actual applicable gross salary, subject to statutory deductions.
Entitlement to unpaid leave pay
Leave pay of Kshs. 76,467/= awarded because the respondent failed to produce leave records
Sections 10 and 74 of the Employment Act oblige the employer to keep employment records; failing to avail leave records, the respondent was condemned to pay the claimed leave compensation.
Entitlement to compensation for unfair termination
Three months' gross salary (Kshs. 141,000/=) awarded under Section 49, not the maximum 12 months
Although termination was procedurally unfair, the claimant contributed to his dismissal through misconduct in removing the respondent's property without authority or documentation. Weighing the Section 49(4) factors, three months' gross salary was fair and reasonable.
Legal principles established
#- An employer must have a lawful reason for disciplinary process and adopt a fair, just and lawful procedure - substantive and procedural fairness are a twin-test
- Once an employee raises an issue concerning a record the employer is legally obliged to keep, the burden of proof shifts to the employer
- Gratuity is a voluntary payment or a contractual term and is not payable absent agreement or undertaking
- Holding a disciplinary hearing before the employee's written response to a show-cause letter is considered violates procedural fairness
Court orders
#- 1.A declaration be and is hereby issued that the termination of the claimant was unfair and unlawful for lack of procedural integrity.
- 2.The claimant is awarded a sum of Kshs. 264,467/= (notice pay Kshs. 47,000.00; leave pay Kshs. 76,467.00; compensation Kshs. 141,000.00).
- 3.The respondent is ordered to issue and deliver to the claimant a certificate of service within 30 days of this judgment.
- 4.Costs of the cause to the claimant.
- Jurisdiction invoked
- First-instance employment claim under the Employment Act, Sections 35, 36, 41, 43, 44, 45, 46, 47, 48, 49, 51
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wafula v Africa Blooms Limited (Cause 29 of 2019) [2023] KEELRC 3167 (KLR)", Case Analysis (2023). Memorandum of claim dated 16th April, 2019 (filed 25th January, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3167/eng@2023-11-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.