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ELRCDismissedNot stated in the extract provided· [2024] KEELRC 86 (KLR)

Murban Movers Limited v Ombijah (Appeal E090 of 2022) [2024] KEELRC 86 (KLR)

Employment and Labour Relations Court
31 January 2024
1,808 words in judgment
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The bottom line

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A Kenyan employer lost its appeal because it couldn't prove a truck driver's misconduct and dismissed him without a fair disciplinary hearing.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi (Rika, J) dismissed the Appellant employer's appeal against a judgment of 8th June 2022 in which the Respondent, a Truck Driver employed on 25th May 2017 on an indefinite-term contract, was awarded one month's salary in lieu of notice, computed leave, a certificate of service, and compensation of 12 months' gross salary (Kshs. 402,600) for unfair termination. The Respondent had been summarily dismissed on 1st July 2020 for allegedly diverting from his designated route while transporting fuel from Mombasa to Rwanda, allegedly causing product contamination. The appeal, argued on the strength of the record, collapsed on all three consolidated grounds. First, the allegations of route diversion and contamination were held to be unproven: they rested on an internal report of unspecified authorship whose maker was not called as a witness, no policy designated the impugned areas as restricted, and contamination was never confirmed by independent testing. Second, the dismissal breached Sections 41 and 45 of the Employment Act: there was no show-cause letter, no invitation to a hearing, and the alleged 29th June 2020 meeting involved only the Managing Director acting as accuser, prosecutor and judge, a process the Court described as a mockery of industrial justice. Third, the awards under Sections 35 and 49 of the Employment Act were held to be a sound exercise of discretion; appellate courts should guard trial courts' remedial discretion and interfere only where the award is an entirely erroneous estimate. The appeal was declined with no order on costs, on 31st January 2024.

Key legal issues

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01

Validity of reason for termination

Holding

The Trial Court was right that there was no valid reason; the allegations of route diversion and contamination were not established by objective evidence

Reasoning

The allegations rested on an internal report of unclear authorship whose maker was not called as a witness. No policy document established the restricted areas, and contamination was unconfirmed pending independent sampling tests. The Managing Director did not contradict the Respondent's evidence that the fuel tested clean. The burden under Sections 43 and 47(5) of the Employment Act was not discharged.

p. 3
02

Procedural fairness of the termination

Holding

The termination breached Sections 41 and 45 of the Employment Act; no proper disciplinary hearing was held

Reasoning

The Respondent received no show-cause letter, no invitation to a hearing, and was simply handed a dismissal letter. The alleged 29th June 2020 meeting was conducted by the Managing Director alone, who read the charges, made findings and dismissed the employee - with no disciplinary committee, witnesses or documents. The Court held this fell far below the minimum statutory standards of fairness.

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03

Appellate interference with the quantum of remedies

Holding

The awards of one month's notice pay and 12 months' gross salary compensation were lawful and a proper exercise of discretion under Sections 35 and 49 of the Employment Act

Reasoning

The Trial Court applied statute and superior-court precedent, considered the employee's 3 years of service and open-ended contract, and the substantively and procedurally flawed termination. The appellate court would interfere only where the award is inordinately high or low, constituting an entirely erroneous estimate, which was not the case here; reinstatement and re-engagement were also open remedies.

p. 4

Legal principles established

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  • An employer alleging misconduct bears the burden of establishing the misconduct with objective evidence, including the relevant policy and witnesses
  • A disciplinary process under Section 41 of the Employment Act requires a properly convened hearing with notice, charges, witnesses, and an opportunity to be accompanied; a unilateral meeting does not suffice
  • An appellate court will not interfere with a trial court's discretionary award of compensation for unfair termination unless the award represents an entirely erroneous estimate or is injudicious

Court orders

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  1. 1.The Appeal is declined
  2. 2.No order on the costs
On appeal from
Employment and Labour Relations Court (subordinate/tribunal first instance, not named in the judgment)
Jurisdiction invoked
Appellate jurisdiction under the Employment Act and the Employment and Labour Relations Court Act (provisions not expressly cited in the extract)

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, "Murban Movers Limited v Ombijah (Appeal E090 of 2022) [2024] KEELRC 86 (KLR)", Case Analysis (2024). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/86/eng@2024-01-31

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