Wang’ombe v Mawingu Networks Limited (Cause E048 of 2022) [2024] KEELRC 126 (KLR)
The bottom line
#A Kenyan court ruled that refusing a boss's lawful return-to-office order justified dismissal, but an unjustified 54% pay cut still cost the employer over USD 34,000.
What this practically means
#Executive summary
#Key legal issues
#Validity of the reason for summary dismissal
The refusal to resume work at the Nanyuki office despite a proper command from the CEO amounted to gross misconduct under section 44(4)(a) and (e) of the Employment Act, justifying summary dismissal.
The CEO lawfully directed resumption of office work after Covid-19. The claimant's grievance over the 54% salary cut did not entitle him to disobey; he could have used the grievance procedure or resigned and claimed constructive dismissal. His conduct fell squarely within section 44(4), so the employer was justified in dismissing him summarily.
Procedural fairness of the dismissal
The employer complied with section 41 of the Employment Act: show cause letter, response, disciplinary hearing before a committee, consideration of representations, and dismissal letter.
The claimant was served with a show cause notice, responded, attended a disciplinary hearing, was heard, and his representations were considered before dismissal. The court was satisfied a fair procedure within section 41 was followed and that the dismissal was fair within section 45.
Lawfulness of the two salary cuts
The first salary cut (USD 1,000 plus 20%) was lawful as it was requested with full disclosure and consented to in writing; the second cut to 54% was fraudulently obtained through misrepresentation and concealment and was therefore voidable and unlawful.
The first cut was backed by an express request and full disclosure, including the CEO's own 25% cut, and the claimant consented in writing. The second cut to USD 3,500 relied on a letter the claimant never signed, and the misrepresentation of the company's financial position was unrebutted. Consent obtained through misrepresentation is vitiated.
Admissibility of Communication Authority statistics reports
The reports downloaded and printed from the regulator's official website, supported by an unchallenged certificate of records, were admissible; the accuracy question fell under section 106B, not section 80, of the Evidence Act.
The court distinguished Hezekiah Oira v Patrick Quarcoo because the objection there concerned correspondences and minutes. Information from an official website printed by a member of the public is not secondary evidence if untampered; the certificate by Mr Richu confirmed provenance and was uncontested, so the reports were admitted to assess whether the business dwindled during the pandemic.
Entitlement to shares under the ESOP
The claimant forfeited all rights to vesting of shares because no units had vested (no invitation letter, no payment) and Rule 6(3) of the Scheme Rules mandated forfeiture upon summary dismissal for willful misconduct.
Although the promotion contract entitled the claimant to 2% stock over four years, no units vested before dismissal as the Scheme Rules' conditions precedent were not met. Regardless of his knowledge of the rules, Rule 6(3) provided for forfeiture of all units in the event of termination for misconduct, so the Muhindi estoppel argument did not assist him.
Discrimination in the salary cut
The claimant was subjected to differential treatment, being the only manager subjected to a 54% salary cut while others, including the CEO, took around 25%, without justification; general damages of USD 10,000 were awarded.
The evidence showed the company did not suffer financial stress severe enough to warrant the 54% cut, and only the claimant bore it. The court awarded USD 10,000 general damages for discrimination, taking into account that salary arrears were separately ordered.
Legal principles established
#- An employee has no right to disobey a lawful and proper command from a superior while pursuing a grievance; the remedy is to comply, pursue the grievance procedure, or resign and sue for constructive dismissal.
- An employee's consent to variation of employment terms obtained through misrepresentation or concealment of material facts is negated and the variation is voidable.
- Printouts from an official regulator's website, supported by an unchallenged certificate of records, are admissible as primary/electronic evidence and accuracy is governed by section 106B of the Evidence Act rather than the certification requirement in section 80.
Court orders
#- 1.Judgment for the claimant in the sum of USD 24,857.50 as salary arrears in respect of the salary cut effected from 1st February 2021 to 10th June 2022
- 2.General damages of USD 10,000 for discriminatory salary treatment
- 3.Total award of USD 34,857.50
- 4.Certificate of service granted
- 5.Costs of the suit to the claimant
- 6.Interest at court rate from the date of the judgment
- 7.Award subject to statutory deductions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 44, 45, 49) and the Evidence Act; judgment delivered under the ELRC Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wang’ombe v Mawingu Networks Limited (Cause E048 of 2022) [2024] KEELRC 126 (KLR)", Case Analysis (2024). Cause No E048 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/126/eng@2024-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.