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ELRCPartially AllowedCause No 52 of 2019· [2023] KEELRC 3436 (KLR)

Kamidi v DHL Worldwide Express (K) Ltd (Cause 52 of 2019) [2023] KEELRC 3436 (KLR)

Employment and Labour Relations Court
23 November 2023
4,830 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled DHL unfairly dismissed an employee returning from maternity leave, but she won less because her discrimination claim lacked documentary proof.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent as Import Service Desk Executive and later promoted to Import Service Desk Supervisor, sued for unlawful dismissal, discrimination on account of pregnancy, notice pay, compensation, leave dues and a certificate of service. Her dismissal on 12th February 2018 followed the disappearance from the Respondent's Bonded Warehouse of a shipment under Air waybill 9604231895 valued at USD 7,103, cleared without customer authorisation. The Respondent maintained the dismissal was substantively and procedurally fair as gross misconduct under section 44(4)(g) of the Employment Act, and that the discrimination claim was unsupported. The court found that although the Respondent asserted a reason for dismissal, the manner of execution was manifestly unjust: the Claimant was demoted upon resumption from maternity and compassionate leave without ascertainment of reasons, no show cause letter was produced in the records, and RW1 could not confirm a hearing took place. The court observed the investigation implicated Ms. Winnie Chepkwony and others, with the Claimant reduced to a patsy on whom all blame was heaped. The discrimination claim failed for want of proof, the Claimant having admitted she never lodged a complaint and produced no documentation. The court awarded one month's notice pay of Kshs. 105,600/-, six months' salary as compensation of Kshs. 633,600/- instead of the twelve months sought, and costs of the suit.

Key legal issues

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01

Whether the dismissal was substantively fair

Holding

The Respondent had a reason for dismissal (the Claimant's role in the disappearance of a shipment cleared without customer authorisation), but the Claimant was in the court's view a patsy in a scheme hatched by others

Reasoning

The court accepted that the Respondent asserted a reason connected to the lost shipment valued at USD 7,103. However, the investigation showed the scheme was hatched by Ms. Winnie Chepkwony and others, and the Claimant was heaped with all the blame. The reason existed but the blame attribution and timing rendered the dismissal unjust in part.

p. 8
02

Whether the dismissal was procedurally fair

Holding

The dismissal was procedurally flawed - no show cause letter was produced, and the hearing process was not demonstrably followed

Reasoning

RW1 admitted no show cause letter was in the records and could not confirm whether a hearing took place. Although statements were recorded during investigations, the court found the manner of execution manifestly unjust: the Claimant was demoted before ascertainment of reasons and dismissed without a chance to improve.

p. 8
03

Whether the Claimant was discriminated against on account of pregnancy

Holding

The discrimination claim failed for lack of proof

Reasoning

The Claimant admitted she never filed a complaint with the Respondent or in court regarding discrimination, and produced no documentation. Under sections 107 and 108 of the Evidence Act the burden lay on her, and the termination letter showed the dismissal was based on the lost shipment, not pregnancy.

p. 7
04

Appropriate remedies

Holding

One month's notice pay and six months' salary as compensation awarded; the maximum 12 months was not granted

Reasoning

Although the court found the dismissal unjust, it reduced compensation in light of the Claimant's contribution to the loss (clearing paperwork without authorisation). Notice pay was awarded since summary dismissal without notice still engages section 35 considerations; the court granted Kshs. 105,600/- notice and Kshs. 633,600/- compensation.

Legal principles established

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  • An employer must prove both the reason for dismissal and that a fair procedure was followed; where no show cause letter or disciplinary hearing is evident, the dismissal is procedurally unfair even if a reason exists.
  • Dismissing an employee upon return from maternity leave, without first ascertaining the reason for alleged poor performance or affording an opportunity to improve, is unjust and informs a reduced compensatory award rather than the statutory maximum.

Court orders

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  1. 1.One month's notice pay of Kshs. 105,600/-
  2. 2.Six months' salary as compensation for unfair termination, being Kshs. 633,600/-
  3. 3.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 43(2)
  • Employment Act, 2007section 44
  • Employment Act, 2007section 44(1)
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 44(4)(g)
  • Employment Act, 2007section 45
  • Employment Act, 2007section 45(2)
  • Employment Act, 2007section 45(2)(c)
  • Employment Act, 2007section 49
  • Employment Act, 2007section 49(1)(c)
  • Employment Act, 2007section 49(4)
  • Employment Act, 2007section 50
  • Employment Act, 2007section 35(1)
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 27(4)
  • Constitution of KenyaArticle 27(5)
  • Evidence Act, Cap 80 Laws of Kenyasections 107 and 108

Cases cited (8)

  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Naima Khamis v Oxford University Press (E.A) Ltd
    [2017] eKLR
  • Kenafric Industries Limited v John Gitonga Njeru
    [2016] eKLR
  • Reuben Ikatwa & 17 others v Commanding Officer British Army Training Unit Kenya & another
    [2017] eKLR
  • Ongaro v Judicial Service Commission & another
    (Petition E007 of 2021) [2022] KEELRC 1186 (KLR) (14 July 2022)
  • BA Imonikhe v Unity Bank PLC
    S.C 68 of 2001
  • Kipkebe Limited v Peterson Ondieki Tai
    [2016] eKLR
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (termination of employment and discrimination contrary to the Constitution of Kenya and the Employment Act, 2007)

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, "Kamidi v DHL Worldwide Express (K) Ltd (Cause 52 of 2019) [2023] KEELRC 3436 (KLR)", Case Analysis (2023). Cause No 52 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3436/eng@2023-11-23

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