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ELRCPartially AllowedNot stated in the judgment as provided· [2023] KEELRC 3327 (KLR)

Nyamweya v Geothermal Development Company Limited (Cause 202 of 2020) [2023] KEELRC 3327 (KLR)

Employment and Labour Relations Court
8 December 2023
SRStella Rutto
3,926 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

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A Kenyan court threw out an employee's dismissal claim in part because the employer skipped the mandatory hearing before firing him.

What this practically means

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Executive summary

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The claimant, formerly employed by the respondent as a geologist and later Scientist II, challenged his summary dismissal on grounds of absenteeism, neglect of duty and refusal to obey lawful commands. The dispute arose from his October 4, 2016 transfer from the Geothermal Resource Management Department to the Geothermal Resource Assessment Department, effective November 1, 2016. The claimant alleged he was told by Human Resources that they were unaware of the transfer and continued working at his former station; the respondent asserted biometric records showed he reported only once during the period while earning full salary. The court framed four issues: substantive justification, procedural fairness, the counterclaim, and reliefs. On substance, the court found the claimant failed to report to the new department and did not appeal the transfer, amounting to refusal to obey a lawful command under section 44(4)(e) of the Employment Act; the dismissal was therefore substantively justified. On procedure, however, the court found the claimant was never invited to an oral disciplinary hearing before dismissal as required by section 41, and the appeal-stage hearing could not cure that defect; the termination was thus procedurally unfair. The counterclaim for Kshs 1,195,668.42 in salary earned during the absence was struck out for want of a verifying affidavit contrary to Order 7 Rule 5(a) of the Civil Procedure Rules. The claimant was awarded one month's salary in lieu of notice (Kshs 206,972.05), nominal compensatory damages of one month's gross salary (Kshs 206,972.05), and unpaid leave pay (Kshs 124,183.23), totalling Kshs 538,127.33 with interest. Punitive and general damages were declined. The claimant received the costs of the suit.

Key legal issues

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01

Substantive justification of the termination

Holding

The termination was substantively justified as the claimant failed to report to the new department as directed, contrary to section 44(4)(e) of the Employment Act

Reasoning

The claimant was transferred from GRM to GRA Department effective 1 November 2016 but did not report to the new station, admitting so in cross-examination. He did not appeal the transfer and his explanation that HR was unaware of the transfer did not hold. The court found on a balance of probabilities that the employer had sufficient and reasonable grounds to commence disciplinary action for refusal to obey a lawful command.

p. 6
02

Procedural fairness of the termination

Holding

The termination was procedurally unfair as the claimant was not invited to an oral disciplinary hearing before summary dismissal as required by section 41 of the Employment Act

Reasoning

The claimant was issued a show cause letter dated March 13, 2017 but did not respond in writing, and was summarily dismissed without being invited to a disciplinary hearing. Section 41 requires an employer to hear and consider the employee's representations, which can only be fulfilled through an oral hearing. Although the claimant was heard at the appeal stage, the process required under section 41 must occur before termination, not after.

p. 7
03

Validity of the counterclaim

Holding

The counterclaim was struck out for being fatally defective for want of a verifying affidavit

Reasoning

Order 7 Rule 5(a) of the Civil Procedure Rules requires a defence and counterclaim to be accompanied by a verifying affidavit. The respondent's counterclaim was not accompanied by one and none was filed before hearing and judgment. The court held that while such a defect is curable, the respondent never cured it, and the counterclaim was therefore struck out as fatally defective.

p. 8
04

Entitlement to reliefs

Holding

The claimant was awarded one month's salary in lieu of notice, nominal compensatory damages equivalent to one month's gross salary, and unpaid leave pay

Reasoning

Having found the termination procedurally unfair though substantively justified, the court awarded notice pay and nominal compensatory damages of one month's gross salary, factoring in the length of employment and the claimant's own contribution to the termination. The leave claim was allowed because the respondent failed to exhibit leave records as required under section 74(1)(f) of the Employment Act.

p. 8

Legal principles established

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  • The employer bears the burden of proving the reason for termination, and failure renders the termination unfair
  • The procedural fairness requirements under section 41 of the Employment Act can only be fulfilled through an oral hearing before termination or dismissal, not after
  • An employee's failure to respond to a show cause letter does not excuse the employer from affording an oral hearing before summary dismissal
  • A disciplinary hearing at the appeal stage does not cure the absence of a hearing before dismissal
  • An employee knowingly failing or refusing to obey a lawful and proper command amounts to gross misconduct justifying summary dismissal

Court orders

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  1. 1.The Claimant is awarded the sum of Kshs 206,972.05 being one month's salary in lieu of notice
  2. 2.The claimant is awarded compensatory damages in the sum of Kshs 206,972.05, equivalent to one month of his gross salary
  3. 3.The Claimant is awarded the sum of Kshs 124,183.23 being unpaid leave pay
  4. 4.Total award of Kshs 538,127.33
  5. 5.Interest on the total amount at court rates from the date of Judgment until payment in full
  6. 6.The Counterclaim is struck out with no orders as to costs
  7. 7.The Claimant shall have the costs of the suit

Authorities

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Legislation

  • Employment Actsection 49(1)(c)
  • Employment Actsection 45(2)(a) and (b)
  • Employment Actsection 43(1)
  • Employment Actsection 44(a)(c) & (e) / section 44(4)(e)
  • Employment Actsection 45(2)(c)
  • Employment Actsection 41(2) and section 41
  • Employment Actsection 74(1)(f)
  • Civil Procedure RulesOrder 7 Rule 5(a)
  • Civil Procedure RulesOrder 4 rule 1(2)

Cases cited (4)

  • Rodgers Titus Wasike v General East Africa Limited
    (2020) eKLR
  • Thomas Dzombo Kirunga v Krystalline Salt Ltd
    (2020) eKLR
  • Felix Muchemi Thirima v Kenya Pipeline Company Limited
    (2020) eKLR
  • David Njeka v Lavage dry Cleaners Limited
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court original jurisdiction under the Employment Act

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, "Nyamweya v Geothermal Development Company Limited (Cause 202 of 2020) [2023] KEELRC 3327 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3327/eng@2023-12-08

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