Motrex Limited v Ngolo (Appeal E082 of 2023) [2024] KEELRC 372 (KLR)
The bottom line
#Kenya's Employment Court confirmed a driver's dismissal was unfair because he never got a proper hearing, but cut his compensation because the employer had already paid his dues.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
The termination was procedurally unfair; the stolen minutes and show cause notice could not substitute for proof of the mandatory Section 41 process, and the employee's companion at a hearing benefits both employee and employer.
The appellant claimed the show cause notice and disciplinary minutes were stolen and reported to police, but never established when the theft occurred or the respondent's responsibility. Section 41 requires the employee to be heard in the presence of a companion of his choice; no witness clarified whether the shop steward attended as the respondent's representative or as the appellant's witness. The trial court's finding of unfair termination was therefore sound.
Assessment of remedies under Sections 28, 45(5) and 18(4)
The trial court erred in awarding all claims without accounting for payments already made and without reasons for maximum compensation; compensation reduced to three months' pay, notice pay of Kshs. 26,000 affirmed, leave paid at Kshs. 15,288 credited.
The court found the appellant had paid terminal dues including Kshs. 19,496 and Kshs. 15,288 for untaken leave per the clearance form dated 1 November 2016. Leave accrual beyond 18 months is barred by Section 28 absent employer approval. Section 45(5)(c) required the court to take into account the appellant's compliance with statutory requirements in fixing compensation, justifying a reduction from 12 to 3 months.
Legal principles established
#- The procedural requirements of Section 41 of the Employment Act are mandatory; an employer must demonstrate that the employee was issued notice to attend and defend himself at a disciplinary hearing in the presence of another employee of his choice, even where disciplinary records are alleged stolen.
- An award of maximum 12 months' compensation must be justified with sound reasons under Section 45(5) of the Employment Act.
Court orders
#- 1.A finding that there was unfair termination of employment
- 2.The respondent is awarded Kshs. 78,000 in compensation
- 3.Notice pay of Kshs. 26,000
- 4.Each party is to bear its own costs of this appeal and proceedings before the lower court
- On appeal from
- Chief Magistrate's Court (ELRC), Mombasa
- Mombasa CM ELRC No.738 of 2018
- Jurisdiction invoked
- First appeal from the magistrates' court under the Employment and Labour Relations Court jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Motrex Limited v Ngolo (Appeal E082 of 2023) [2024] KEELRC 372 (KLR)", Case Analysis (2024). Mombasa CM ELRC No.738 of 2018 (appeal) – final orders refer to Mombasa CM ELRC No.734 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/372/eng@2024-02-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.