Mugo v ASP Company Limited (Appeal E103 of 2021) [2024] KEELRC 191 (KLR)
The bottom line
#A Kenyan employment court ruled that a valid reason for dismissal is not enough — employers must still hold a proper disciplinary hearing or pay compensation.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination
Termination was on valid ground but procedurally unfair, as the Appellant was not taken through a disciplinary hearing under sections 41 and 45 of the Employment Act.
The Trial Court's judgment was silent on whether a disciplinary hearing was afforded. No reference was made to charges, a show-cause letter, invitation to a hearing, or a finding of gross misconduct under section 44(4)(a). A previous explanation notice did not amount to a disciplinary hearing. Valid reason existed (unauthorized absence), so compensation was limited to the procedural lapse.
Whether absence was on authorized sick-off
The Trial Court did not err in rejecting the Appellant's evidence that she was away on account of illness; she was authorized only 2 days' sick-off and extended it without permission or supporting medical evidence.
The sick-off sheet dated 21st January 2019 granted only 2 days. The Appellant did not exhibit medical evidence showing she was required to return to hospital on 24th January 2019 or that the Respondent granted an extension. The Respondent's Witness confirmed she exceeded the stipulated days. Clause 6 of the contract entitled the Respondent to summarily dismiss for absence without reason.
Reasonableness of transfer to Isinya
The transfer was a reasonable exercise of managerial prerogative under clause 8 of the contract; the award of Kshs. 72,000 for unreasonable deployment had no legal or factual justification and was set aside.
The contract allowed transfer to any department, project site or sister organization. Isinya was not distant; the Appellant was given 3 days to complete transfer, worked there over 6 months without complaint, and no evidence showed the transfer was inhumane or in bad faith. The pleaded basis of Kshs. 2,000 per week had no contractual or legal foundation.
Salary deduction for days absent
The deduction of salary for days absent without permission was lawful under section 19(1)(c) of the Employment Act.
Since the Appellant was found to have been away without permission beyond her authorized sick-off, the Respondent was entitled under section 19(1)(c) of the Employment Act to deduct salary for the days not worked.
Legal principles established
#- An employee's previous explanation notices do not amount to the disciplinary hearing contemplated under sections 41 and 45 of the Employment Act.
- Transfer of an employee is a managerial prerogative; the Court will not intervene unless the prerogative is exercised unreasonably.
- A sick-off sheet is not an open-ended authorization to be away from work.
Court orders
#- 1.Declared that termination of the Appellant's contract was not based on fair procedure, and to that extent was unfair
- 2.Respondent to pay the Appellant the equivalent of 6 months' salary in compensation for unfair termination, at Kshs. 143,346
- 3.Counter-Appeal allowed; award of Kshs. 72,000 in compensation for unreasonable deployment set aside
- 4.No order on the costs on both Trial and Appeal
- On appeal from
- Trial Court (subordinate court, not named)
- Not stated
- Jurisdiction invoked
- Appellate jurisdiction over the Trial Court in an employment dispute (statutory basis not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mugo v ASP Company Limited (Appeal E103 of 2021) [2024] KEELRC 191 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/191/eng@2024-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.