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ELRCAllowedCause No E885 of 2021· [2023] KEELRC 3435 (KLR)

Wachira v Proshade Kenya Limited (Cause E885 of 2021) [2023] KEELRC 3435 (KLR)

Employment and Labour Relations Court of Kenya
29 November 2023
NMNzioki Wa Makau
1,442 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee's dismissal unfair because he got only two days' notice of a disciplinary hearing and vague charges.

What this practically means

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Executive summary

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The Claimant sued the Respondent for damages for wrongful and unfair termination of employment, unpaid salaries and terminal dues. He was employed as a Project Designer and Renderer from May 2017, formalised on a fixed-term renewable contract in January 2018, and rose to lead designer with his salary doubling from Kshs. 50,000 to Kshs. 100,000. Following Covid-19 work-from-home directives, his salary payments fell into arrears. He was suspended on 16th December 2020 for alleged undisclosed misconduct, invited to a disciplinary hearing on two days' notice in February 2021, and his employment was terminated effective 13th May 2021. The Respondent refused to participate in the suit, which proceeded by formal proof. The Claimant submitted that the notices failed to particularise the misconduct, the hearing notice period was grossly inadequate, and the hearing was improperly constituted, breaching section 41 of the Employment Act and Article 50 of the Constitution. He relied on Sani v JSC, OH Abantu, Kenfreight and Donald Odeke v Fidelity Security Ltd. The court held that the time to prepare was short, inadequate and unjust, that due process was not followed, and that fair administrative action is not a box-ticking exercise. It found for the Claimant, holding that the procedural failure triggers compensation under section 49(1)(c) read with sections 41, 43 and 45 of the Employment Act. The judgment does not set out an itemised award or an express costs order.

Key legal issues

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01

Procedural fairness of the disciplinary process under section 41 of the Employment Act

Holding

The two-day notice of the disciplinary hearing and notices that did not particularise the misconduct denied the Claimant a fair hearing; due process was not followed

Reasoning

The Claimant was invited to a disciplinary hearing within two days and served notices that did not disclose the misconduct alleged. Citing Sani v JSC and OH Abantu, charges must be precisely formulated and given in advance. Short notice also deprived him of the chance to prepare a defence or bring a colleague, offending natural justice and Article 50(1) and (2)(a) and (c).

p. 3
02

Consequence of failure to accord procedural fairness

Holding

Failure to accord a proper hearing under section 41 triggers compensation under section 49(1)(c) read with sections 41, 43 and 45

Reasoning

The court held that where a party is not heard in accordance with natural justice, the dismissal falls foul of section 41 of the Employment Act, and this in turn engages the court's power to award compensation under section 49(1)(c) as read with sections 41, 43 and 45. The Respondent, having refused to participate, failed to discharge the onus of proving a fair and procedural termination.

p. 3

Legal principles established

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  • An employee facing disciplinary action must be given adequate time and opportunity to respond to charges; failure to hear the employee renders termination unfair
  • Fair administrative action in disciplinary processes is substantive, not merely formal compliance

Court orders

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  1. 1.The Court finds for the Claimant - 'The Court therefore finds for the Claimant: It is so ordered.'

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43(1)
  • Employment Actsection 45(1)
  • Employment Actsection 49
  • Employment Actsection 49(1)(c)
  • Constitution of KenyaArticle 50(1) and (2)(a) and (c)

Cases cited (4)

  • Sani v JSC (Cause 7 of 2019) [2022] KEELRC 4000 (KLR)
    [2022] KEELRC 4000 (KLR) (26 September 2022)
  • OH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & Ors
    (2019) 40 ILJ 2477
  • Kenfreight (EA) Limited v Benson K. Nguti
    [2019] eKLR
  • Donald Odeke v Fidelity Security Ltd
    [2012] eKLR
Jurisdiction invoked
First-instance employment and labour relations dispute under the Employment Act; specific enabling provision not stated in the judgment

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, "Wachira v Proshade Kenya Limited (Cause E885 of 2021) [2023] KEELRC 3435 (KLR)", Case Analysis (2023). Cause No E885 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3435/eng@2023-11-29

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