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ELRCPartially AllowedELRC Cause No. 170 of 2018 (lead file, consolidated with Cause No. 171 of 2018)· [2024] KEELRC 459 (KLR)

Kimonge & another v Eastern Produce Kenya Ltd (Cause 170 & 171 of 2018 (Consolidated)) [2024] KEELRC 459 (KLR)

Employment and Labour Relations Court
4 March 2024
4,165 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Two consolidated causes (Eldoret ELRC Causes Nos. 170 and 171 of 2018) were heard together, with Cause No. 170 as the lead file. The Claimants, tea pluckers on fixed-term contracts with Eastern Produce Kenya Ltd, claimed they were summarily dismissed on 6th July 2016 after an industrial strike of 30th June to 5th July 2016, seeking notice pay, annual leave, overtime, severance pay and 12 months' compensation. The Respondent maintained the Claimants participated in an illegal strike in defiance of a court order and a Return to Work Formula, absconded duty, and were lawfully summarily dismissed for gross misconduct after show cause letters and a disciplinary hearing. The court found the strike and absence from work undisputed, but held the dismissal unfair both procedurally and substantively: the show cause notices doubled as hearing notifications with less than 24 hours' notice, no minutes of the disciplinary hearing were produced, the dismissal letters did not state which charges were proved, and the Respondent failed to produce section 30 of the CBA or otherwise discharge its burden under sections 41 and 43 of the Employment Act. The court awarded each Claimant one month's pay in lieu of notice, 6 days' annual leave, and 10 months' compensation under section 49(4), but declined overtime for lack of proof and severance pay as the termination was not a redundancy. Judgment was entered for the 1st Claimant at Kshs 92,345.00 and the 2nd Claimant at Kshs 132,139.97, with costs to the Claimants.

Key legal issues

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01

Whether the summary dismissal of the Claimants was procedurally fair under sections 41 and 43 of the Employment Act

Holding

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.

Reasoning

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.

p. 8
02

Whether the dismissal was substantively fair

Holding

The dismissal was also substantively unfair, as the Respondent failed to prove the grounds of gross misconduct.

Reasoning

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.

p. 9
03

Entitlement to annual leave for contract employees

Holding

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.

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.Judgment entered for the Claimants against the Respondent for unfair termination.
  2. 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. 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. 4.The Claimants are awarded costs.

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44(a) & (e); Section 44(4)
  • Employment ActSection 47
  • Employment ActSection 49(4)
  • Labour Relations Actnull
  • Collective Bargaining AgreementClause 30(a) & (e); Clause 21; Section/Clause 30
  • Employment Act 2007Section 44(4)

Cases cited (3)

  • Lamathe Hygiene Food v Wesley Patrick Simasi Wafula & 8 others
    (2016) eKLR
  • John Rioba Maugo v Riley Falcon Security Services Limited
    [2016] eKLR
  • Michael Odhiambo Opiyo v Bidco Africa Limited
    (2021) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "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.