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ELRCPartially AllowedMombasa CM ELRC No.738 of 2018 (appeal) – final orders refer to Mombasa CM ELRC No.734 of 2019· [2024] KEELRC 372 (KLR)

Motrex Limited v Ngolo (Appeal E082 of 2023) [2024] KEELRC 372 (KLR)

Employment and Labour Relations Court
22 February 2024
2,499 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is the ELRC at Mombasa (M. Mbarũ, J) determining a first appeal from the magistrates' court judgment of 30 June 2023 in Mombasa CM ELRC No.738 of 2018, which had found unfair termination and awarded the respondent, a heavy commercial driver employed from 24 April 2008 and dismissed on 30 October 2016, all his claimed dues of Kshs. 416,000. The appellant, whose representative found the tracking device in vehicle KCF 465V tampered with during a routine inspection, contended that a disciplinary process was conducted but the notice to show cause and minutes were stolen, reported to Mikindani Police Station. The court held that Section 41 of the Employment Act imposes mandatory procedural requirements: the employee must be given notice and allowed a hearing in the presence of a companion of his choice, and alleged theft of records did not excuse compliance, particularly where the timing of the theft and the respondent's responsibility were never established. The trial court's finding of unfair termination was affirmed. On remedies, the court found the trial court failed to give reasons for the maximum 12 months' compensation and failed to credit payments already made (Kshs. 19,496 terminal dues including Kshs. 15,288 for 17.4 accrued leave days per the clearance form of 1 November 2016). Applying Section 45(5)(c), the court reduced compensation to three months' pay (Kshs. 78,000) and confirmed notice pay of Kshs. 26,000. The appeal was partially allowed and, because the appellant had paid terminal dues at termination, each party was ordered to bear its own costs of the appeal and the proceedings below.

Key legal issues

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01

Procedural fairness of the termination

Holding

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.

Reasoning

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.

p. 4
02

Assessment of remedies under Sections 28, 45(5) and 18(4)

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.A finding that there was unfair termination of employment
  2. 2.The respondent is awarded Kshs. 78,000 in compensation
  3. 3.Notice pay of Kshs. 26,000
  4. 4.Each party is to bear its own costs of this appeal and proceedings before the lower court

Authorities

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Legislation

  • Employment Act, 2007Section 41 (incl. s.41(2))
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 45(4)(b), 45(5) incl. 45(5)(c)
  • Employment Act, 2007Section 28
  • Employment Act, 2007Section 18(4)
  • Employment Act, 2007Section 51
  • Evidence ActSection 107

Cases cited (10)

  • Cooperative Bank of Kenya Limited v Yator
    Civil Appeal No. 87 of 2018
  • Josephine M. Ndungu & others v Plan International Inc.
    [2019] eKLR
  • Jackson Butiya v Eastern Produce Kenya Limited
    Cause No.335 of 2011
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [202] eKLR
  • Dennis Kaiser v Makupa Transit Shade Limited
    Cause No. 47 of 2020
  • Peter Wafula Juma v Republic
    Criminal Case No.144 of 2011
  • Joseph Onyango Asare vs Brookside Dairy Limited
    (2016) eKLR
  • Patrick Abuya v Institute of Certified Public Accountants of Kenya (ICPAK) & another
    [2015] eKLR
  • Gas Kenya Limited v Odhiambo
    (Appeal E006 of 2022) [2022] KEELRC 3930 (KLR)
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
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

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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, "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

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