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ELRCDismissedELRC Cause (Memorandum of Claim dated February 4, 2022)· [2024] KEELRC 340 (KLR)

Mwanga v Eden Reforestation Projects (Cause E088 of 2022) [2024] KEELRC 340 (KLR)

Employment and Labour Relations Court
21 February 2024
DMD. K. Njagi Marete
2,666 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant, Victor Mwanga, sued his former employer for wrongful, unfair and unlawful termination of his employment as National Director, alleging summary dismissal without notice, fair hearing or valid reasons while on sick leave, and discrimination. He sought reinstatement, salary arrears, constitutional damages, exemplary damages and twelve months' compensation of Kshs.4,161,930.00. The respondent denied the claim, contending the claimant's persistent insubordination and disrespectful emails to his Co-Director supervisors amounted to gross misconduct under section 44(4)(d) of the Employment Act, 2007, justifying summary dismissal after a disciplinary hearing which the claimant disrupted and abandoned. The respondent also counterclaimed, alleging the claimant fraudulently obtained a directorship through misrepresentation, intimidation and manipulation, seeking damages and his removal as a director. At the hearing on 24th May 2023 both parties testified, and written submissions were filed. The court framed four issues: lawfulness of the termination, the counter claim, entitlement to relief, and costs. Holding that the claimant failed to discharge the burden of proof under section 47(5) and that the evidence showed a pattern of abuse and vilification of supervisors, the court found the termination lawful. It allowed the counter claim solely to the extent of ordering the claimant's removal as a director of the respondent company, deeming his conduct an unfair labour practice, and dismissed the main claim. Each party was ordered to bear their own costs.

Key legal issues

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01

Whether the summary dismissal for gross misconduct was wrongful, unfair and unlawful

Holding

The termination was lawful; the claimant's conduct amounted to insubordination under section 44(4)(d) of the Employment Act and he failed to rebut the respondent's evidence.

Reasoning

The court reviewed the email correspondence showing a pattern of disrespect towards supervisors despite verbal warnings. It found the claimant attended a disciplinary hearing but disrupted and abandoned it, frustrating the process. Relying on the burden of proof under section 47(5) of the Employment Act, 2007, the court held the claimant failed to prove unfair termination and the respondent justified the dismissal for gross misconduct.

p. 6
02

Whether the respondent is entitled to the counter claim

Holding

Allowed, limited to an order that the claimant be removed as a director of the respondent company.

Reasoning

The respondent proved that the claimant obtained his directorship through false, fraudulent allegations, misrepresentation, intimidation and manipulation. The court deemed this an unfair labour practice and allowed the counter claim but limited the award to prayer (b), the removal of the claimant as a director, not awarding damages.

p. 6
03

Whether the claimant is entitled to the relief sought

Holding

He is not, having lost the claim of unlawful termination.

Reasoning

Having found that the termination was lawful and that the claimant failed to discharge the statutory burden of proof, the court held the claimant disentitled to reinstatement, arrears, damages and compensation. The claim was dismissed in its entirety with each party bearing their own costs.

p. 6

Legal principles established

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  • The burden of proving unfair termination rests on the employee; where the employee fails to rebut the employer's evidence of gross misconduct, the termination is lawful.
  • Procuring a directorship through misrepresentation and manipulation amounts to an unfair labour practice.

Court orders

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  1. 1.The claim is dismissed.
  2. 2.The claimant be removed as a Director of the Respondent Company.
  3. 3.Each party bears their own costs.

Authorities

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Legislation

  • Employment Act, 2007Section 44(3) and (4)(d)
  • Employment Act, 2007Sections 41 and 43
  • Employment Act, 2007Section 47(5)

Cases cited (4)

  • Mugo v Teachers Service Commission
    (Employment and Labour Relations Cause E028 of 2021) [2022] KEELRC 13180 (KLR)
  • Mercy Omondi Omollo v Rama Homes Ltd
    ELRC Cause No. 89 of 2020
  • Abraham Gumba vs. Kenya Medical Supplies Authority
    [2014] eKLR
  • Banking Insurance & Finance Union (Kenya) vs Barclays Bank of Kenya Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (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, "Mwanga v Eden Reforestation Projects (Cause E088 of 2022) [2024] KEELRC 340 (KLR)", Case Analysis (2024). ELRC Cause (Memorandum of Claim dated February 4, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/340/eng@2024-02-21

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