Webukha v East Africa Packaging Industries Ltd (Cause 128 of 2018) [2024] KEELRC 1037 (KLR)
The bottom line
#Even when an employee is fired for a valid reason, Kenyan employers must still follow fair written procedures or pay compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was substantively justified
Yes - the Respondent proved on a balance of probabilities that it had a valid and fair reason to terminate
The court found from the evidence of the Claimant, CWII and the Payroll Clerk that a disagreement occurred in Munyao's office and but for Samuel Kung'u the Claimant would have battered him. Section 43(2) requires the employer to show reasons it genuinely believed to exist, tested on a balance of probability under the range of reasonable responses test. Assaulting a colleague justified dismissal.
Whether the dismissal procedure complied with Section 41 of the Employment Act
No - the procedure was procedurally flawed and the dismissal unfair
Although the Claimant attended the hearing and appealed, the Respondent did not formally invite him in writing, failed to notify him of his entitlements including calling witnesses and being accompanied, and gave him only two days between responding to the notice to show cause and the hearing, denying adequate preparation time.
Entitlement to compensation under Section 49(1)(c)
Two months' gross salary awarded instead of the 12 months sought
The Claimant served 11 years and 1 month and wished to remain employed, but had at least three warning letters for lateness, insubordination and absenteeism, and substantially contributed to his dismissal by assaulting a colleague, which the court held to be exceedingly egregious conduct. These factors justified only the equivalent of two months' gross salary.
Whether the dismissal letter was defamatory
No - the defamation claim was unproven
The Claimant never particularised the alleged defamatory words or demonstrated the elements of defamation, and neither his written witness statement nor his oral evidence addressed the alleged libel. The claim lacked particulars and failed.
Legal principles established
#- A termination of employment must be both substantively justified and procedurally fair
- The employer must prove on a balance of probability reasons it genuinely believed to exist
- A formal written invitation to a disciplinary hearing is an essential element of procedural fairness and oral notice does not suffice
- A guarantor's loss arising from a contract of guarantee is irrecoverable from the employer in an employment relationship
Court orders
#- 1.Equivalent of two (2) months gross salary awarded to the Claimant
- 2.Certificate of service to issue within 30 days
- 3.50% of the costs of the suit to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the unfair dismissal claim; Article 159(2)(d) and Article 48 of the Constitution invoked regarding virtual delivery
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Webukha v East Africa Packaging Industries Ltd (Cause 128 of 2018) [2024] KEELRC 1037 (KLR)", Case Analysis (2024). Cause No 128 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1037/eng@2024-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.