Kimonge & another v Eastern Produce Kenya Ltd (Cause 170 & 171 of 2018 (Consolidated)) [2024] KEELRC 459 (KLR)
The bottom line
#Even after an illegal strike, an employer must give proper notice, a real hearing, and proof of misconduct before summarily dismissing employees in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the Claimants was procedurally fair under sections 41 and 43 of the Employment Act
The dismissal was procedurally unfair; the notice of less than 24 hours, the absence of hearing minutes, the failure to state which charges were proved and the absence of the CBA clause cited made the hearing a mere formality.
The show cause letters doubled as hearing notifications served on 5th July for a hearing on 6th July. The court found the notice insufficient for preparation, no minutes of the hearing were produced, the dismissal letter did not state which of several charges the Claimants were found guilty of, and section 30 of the CBA relied on was not produced. The employer bears the burden of proving compliance with sections 41 and 43 and failed to discharge it.
Whether the dismissal was substantively fair
The dismissal was also substantively unfair, as the Respondent failed to prove the grounds of gross misconduct.
The Respondent did not produce the minutes of the disciplinary hearing or section 30 of the CBA cited in the dismissal letter, so the court could not assess whether the Claimants were guilty of gross misconduct on the grounds stated in the show cause letters. Section 43 requires the employer to prove the grounds for dismissal. The court accordingly found the dismissal unfair both procedurally and substantively.
Entitlement to annual leave for contract employees
The Claimants proved entitlement to annual leave for the duration of their contracts, at 2 days per month as per their contracts, and were awarded 6 days each.
Both Claimants testified they never went on leave, and RW1 confirmed that at the time of dismissal the Claimants had not taken leave. The court found this proved on a balance of probability and awarded leave for the duration of the contracts being served, computed at 2 days per month per the contracts.
Legal principles established
#- Even on summary dismissal for misconduct, the employer must notify the employee of the reasons and afford a hearing before termination.
- A fair hearing requires notification of date, venue, time and charges in good time, and the right to be accompanied by a colleague or union official of the employee's own choice.
- Where notice and hearing are given at the last minute with no minutes produced, the employer's compliance with section 41 is cosmetic and the burden of proving compliance rests on the employer.
Court orders
#- 1.Judgment entered for the Claimants against the Respondent for unfair termination.
- 2.1st Claimant (Wilson Onyango Kimonge) awarded Kshs 92,345.00 comprising one month's pay in lieu of notice (Kshs 8,222.50), annual leave (Kshs 1,897.50) and 10 months' compensation for unfair termination (Kshs 82,225.00).
- 3.2nd Claimant (Hesborn Aura Otengo) awarded Kshs 132,139.97 comprising one month's pay in lieu of notice (Kshs 11,765.87), annual leave (Kshs 2,715.50) and compensation for unfair termination (Kshs 117,658.6).
- 4.The Claimants are awarded costs.
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimonge & another v Eastern Produce Kenya Ltd (Cause 170 & 171 of 2018 (Consolidated)) [2024] KEELRC 459 (KLR)", Case Analysis (2024). ELRC Cause No. 170 of 2018 (lead file, consolidated with Cause No. 171 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/459/eng@2024-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.