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ELRCDismissedMemorandum of Claim dated 17th December 2019· [2024] KEELRC 400 (KLR)

Momanyi v Primarosa Flowers Limited (Cause 852 of 2019) [2024] KEELRC 400 (KLR)

Employment and Labour Relations Court
28 February 2024
LNLinnet Ndolo
1,990 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that employees who refuse to participate in disciplinary hearings cannot later claim they were denied a fair hearing.

What this practically means

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Executive summary

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The Claimant, employed as a Human Resource Manager, was dismissed on 1st October 2019 following a show cause letter dated 20th September 2019 alleging negligence, poor performance, bribery, lack of a practising certificate and tribalism, and a disciplinary hearing on 25th September 2019 which he attended with his Advocate but at which he declined to make representations. He sued for wrongful and unfair dismissal, seeking a declaration, notice pay, twelve months' compensation, leave pay, gratuity, damages for discrimination on the ground that a foreign Group HR Manager was treated differently, and a proper certificate of service. The Respondent defended the dismissal as lawful and fair, relying on an internal audit revealing HR administration gaps and complaints of tribalism and bribery. At trial the Respondent called no witness; the Claimant testified. The court framed two issues: lawfulness and fairness of the dismissal, and entitlement to remedies. Applying the court's earlier decisions in Mary Wagikuyu Komu v The Kenya Hospital Association and Jackson Butiya v Eastern Produce Limited, the court held that an employee who, without justifiable cause, declines to participate in a disciplinary hearing, on his counsel's advice, cannot later claim he was not heard. The dismissal was found lawful, and all remedies were refused: notice pay and compensation fell away, leave pay was shown to have been paid, gratuity and discrimination damages were unsupported by evidence, and the certificate of service complaint had no basis in law. The entire claim was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the Claimant's summary dismissal was lawful and fair

Holding

The dismissal was lawful; the Claimant was afforded notice, adequate time and a hearing date of his choosing but declined to participate, leaving the employer no option but to terminate

Reasoning

The Claimant received a show cause letter dated 20th September 2019, obtained an adjournment to 25th September 2019, and appeared with his Advocate who advised him not to respond to the allegations. His pleaded request for particulars was unsupported by evidence. Relying on prior decisions of the court, the judge held an employee cannot without justification refuse to take part in a disciplinary inquiry and cannot later complain of not being heard. The Respondent's reliance on the Termination Clause and sections 44 of the Employment Act was upheld.

p. 5
02

Whether the Claimant is entitled to the remedies sought

Holding

None of the remedies sought were available; the entire claim was dismissed

Reasoning

Because the dismissal was found lawful, notice pay and compensation fell away. Leave pay was found to have been paid; gratuity and discrimination damages were unsupported by evidence; the certificate of service complaint had no basis in law. The Respondent did not call a witness, but the court found the documentary evidence sufficient.

p. 5

Legal principles established

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  • An employee cannot, without justifiable cause, decline to participate in a disciplinary inquiry initiated by the employer
  • An employee who squanders the opportunity to present a defence cannot later claim they were not heard
  • An employee accompanied by counsel is not entitled to refuse to participate in disciplinary proceedings on the advice of counsel

Court orders

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  1. 1.The Claimant's entire claim fails and is dismissed
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Employment Act, Cap 226 Laws of Kenyasections 44(1), (3), 4(c), (d), (e) and (g)

Cases cited (5)

  • Jonathan Chepkwony v George Makateto, Acting Chief Executive Officer, Export Processing Zones Authority (EPZA) & 2 Others
    [2021] eKLR
  • Willie Kipkoech Langat v County Public Service Board & 2 Others
    [2022] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Mary Wagikuyu Komu v The Kenya Hospital Association t/a The Nairobi Hospital
    [2016] eKLR
  • Jackson Butiya v Eastern Produce Limited
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes

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, "Momanyi v Primarosa Flowers Limited (Cause 852 of 2019) [2024] KEELRC 400 (KLR)", Case Analysis (2024). Memorandum of Claim dated 17th December 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/400/eng@2024-02-28

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