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ELRCPartially AllowedAppeal No E007 of 2023· [2024] KEELRC 485 (KLR)

Simba Corporation t/a Acacia Premier Hotel v Omondi (Appeal E007 of 2023) [2024] KEELRC 485 (KLR)

Employment and Labour Relations Court of Kenya
6 March 2024
CBChristine N. Baari
3,641 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 overturned a cashier's unfair termination award, confirming a hotel's dismissal was fair because it followed proper disciplinary procedure.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Kisumu against a magistrate's decision of 6th January 2023, which found that the Respondent, a cashier, had proved unfair termination on a balance of probabilities and awarded him one month's salary in lieu of notice, 12 months' damages for wrongful termination, damages for loss of employment and costs. The Appellant employer, Simba Hospitality, appealed, contending that the Respondent was summarily dismissed for gross misconduct - fraudulent billing, using previous Mpesa codes to clear bills paid in cash, and charging a customer for an already-settled breakfast - in compliance with Sections 41, 43, 45 and 47 of the Employment Act. Justice Christine N. Baari, re-evaluating the evidence as a first appellate court, found the dismissal procedurally fair: the Respondent received two show cause letters, attended a disciplinary hearing with union and employee representation, and later appealed internally. On substance, the Respondent admitted the misconduct in the disciplinary minutes; applying the range of reasonable responses test and the balance of probability standard, the court held the Appellant had valid, fair and justified reasons to dismiss him. The court upheld notice pay but reduced it from Kshs. 28,100 to the contractual Kshs. 24,000, set aside the 12 months' compensation and the damages for loss of employment (not a Section 49 remedy), and declined the unproven underpayment claim. Each party was ordered to bear its own costs of both the appeal and the suit.

Key legal issues

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01

Procedural fairness under Section 41 of the Employment Act

Holding

The dismissal met the procedural fairness test - the Respondent received show cause letters, was invited to and attended a disciplinary hearing with representation, and later appealed

Reasoning

The court found that the Respondent was issued two show cause letters (13th and 20th October 2020), invited to a disciplinary hearing on 22nd October 2020, attended with four representatives including union officials, and told the committee he felt fairly heard. Although timelines to respond to the second letter were short, the Respondent responded and raised no issue. This met the minimum standards of Section 41.

p. 5
02

Validity and fairness of reasons for dismissal under Sections 43 and 45

Holding

The Appellant had valid, fair and justified reasons to dismiss the Respondent, who admitted the misconduct at the hearing

Reasoning

The disciplinary hearing minutes showed the Respondent could not remember whether he posted the bills, took fault for the mistake, and admitted refunding Kshs. 1,600 charged to a customer who had already settled the bill. Applying the range of reasonable responses test and the balance of probability standard, the acts caused the Appellant losses and justified dismissal by a reasonable employer.

p. 7
03

Remedies for unfair termination under Section 49

Holding

Compensation for unfair termination and damages for loss of employment were not available where termination was fair; notice pay was quantified at the contractual salary

Reasoning

Having found the termination fair, the 12 months' compensation award was set aside entirely. Damages for loss of employment is not a remedy recognised under Section 49 and allowing it would unjustly enrich the Respondent. The notice award was reduced from Kshs. 28,100 to the contractually evidenced Kshs. 24,000, since summary dismissal for the Respondent's misconduct did not fall within Section 44(4).

p. 7
04

Claim for underpayment

Holding

The claim failed as unproven because the period of underpayment was neither pleaded nor established in evidence

Reasoning

The court held the claim was conceptually valid - the Respondent needed only to show payment below the minimum wage order and identify the period - but the statement of claim indicated only the amount sought without the period, the issue did not arise in examination-in-chief, and the trial court's finding on it was not challenged.

p. 7

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and re-analyse the evidence on record and determine whether the trial court's conclusions should stand
  • In assessing an employer's dismissal decision, the court applies the range of reasonable responses test and does not substitute its own view for that of the employer
  • The standard of proof for the validity of reasons for termination is on a balance of probability, not beyond reasonable doubt

Court orders

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  1. 1.The award of one month salary in lieu of notice is upheld at Kshs. 24,000/-
  2. 2.The award of 12 months' salary is set aside in its entirety
  3. 3.The award of damages for loss of employment is set aside
  4. 4.The claim for underpayment is declined
  5. 5.Parties shall bear their own costs of both the appeal and the suit before the lower court

Authorities

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Legislation

  • Employment ActSections 41, 41(1), 42(1), 43, 43(1), 43(2), 44, 44(4), 45, 47, 47(5), 49
  • Labour Relations ActNot specified (referenced in grounds of appeal)
  • Minimum Wage OrderNot specified

Cases cited (8)

  • Lawrence Nyamichaba Ondari v National Hospital Insurance Fund
    [2018] eKLR, Nairobi ELRC Cause No. 1212 of 2014
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    Civil Appeal No. 42 of 2015
  • Anytime Limited v Fredrick Mutobera Omuraya
    [2022] eKLR
  • Selle & Another v Associated Motor Boat Co Ltd
    [1968] EA 123
  • Loice Otieno v. Kenya Commercial Bank Limited
    Cause No. 1050 of 2011
  • Charles Musungu Odana v Kenya Ports Authority
    [2019] eKLR
  • Reuben Ikatwa & 17 Others v Commanding Officer British Army Training Unit Kenya & Another
    [2017] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR, Civil Appeal No. 66A of 2017
On appeal from
Magistrates' Court (ELRC cause)
Not stated
Jurisdiction invoked
First appellate jurisdiction over the Trial Court's decision in an employment cause

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Simba Corporation t/a Acacia Premier Hotel v Omondi (Appeal E007 of 2023) [2024] KEELRC 485 (KLR)", Case Analysis (2024). Appeal No E007 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/485/eng@2024-03-06

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