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ELRCPartially AllowedCause No 152 of 2019· [2024] KEELRC 1173 (KLR)

Mulama v Cezam & Associates Limited (Cause 152 of 2019) [2024] KEELRC 1173 (KLR)

Employment and Labour Relations Court
30 April 2024
4,572 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an employee nearly Kshs. 3.9 million because his employer dismissed him without a proper hearing or valid reasons.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 9th January 2012 and serving as Program Coordinator under a fixed-term contract renewed on 1st November 2018, was summarily dismissed by letter dated 30th November 2018 on grounds of dishonesty relating to unsupported costs. He sued seeking declarations of breach of Section 41 of the Employment Act and constitutional provisions, reinstatement, salary for the balance of the contract, maximum compensation, a Certificate of Service, and general and exemplary damages. The Respondent filed a Response but neither it nor its counsel attended the hearing; no evidence was tendered on its behalf. The court held that the Claimant discharged his burden under Section 47(5) of proving, prima facie, unfair termination, shifting the burden to the Respondent under Sections 43, 45 and 41, which it failed to discharge. The court found the March 2018 meeting was not a disciplinary hearing and that neither substantive justification nor procedural fairness was established. Reinstatement was refused as time-barred under Section 12(3)(vii) of the ELRC Act, with an obiter suggestion that the three-year limit needs re-look. Payment for the balance of the contract was refused to avoid overcompensation; general and exemplary damages were also refused. The court awarded ten months' gross salary (Kshs. 3,893,000/-) under Section 49(1)(c), a Certificate of Service within 30 days, interest at court rates, and costs to the Claimant.

Key legal issues

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01

Whether the termination was procedurally and substantively unfair

Holding

The termination was unfair; the Claimant discharged his burden of proving unfair termination, and the Respondent, having adduced no evidence, failed to justify the grounds and procedure

Reasoning

The Claimant proved the termination occurred and established prima facie unfairness through unchallenged evidence: no notice to show cause, no disciplinary hearing. The burden then shifted to the Respondent under Sections 43, 45 and 41 to prove valid reasons and procedural fairness. The Respondent filed a Response but tendered no evidence, so the dismissal was summary, lacking both substantive justification and the mandatory Section 41 procedure. The 27th March 2018 meeting was not a disciplinary hearing.

p. 5
02

Whether the 27th March 2018 meeting constituted a disciplinary hearing

Holding

It did not; a disciplinary hearing must be preceded by clear notification of the accusation and an express invitation to a hearing

Reasoning

The court held the meeting was merely a discussion of alleged anomalies in financial records. For a disciplinary hearing, the employee must receive a clear notification of the specific misconduct alleged and an express invitation to a disciplinary hearing, neither of which occurred here.

p. 7
03

Whether reinstatement could be granted

Holding

No; the statutory three-year window under Section 12(3)(vii) of the ELRC Act had lapsed, over five years having passed since dismissal

Reasoning

Reinstatement is discretionary and statutorily limited to three years from dismissal. The Claimant was dismissed on 30th November 2018 and judgment came more than five years later. The court, however, observed obiter that the provision needs re-look, as it may diminish employees' rights where the delay is not of their making.

p. 9
04

What compensation was due for unfair termination

Holding

Ten months' gross salary (Kshs. 3,893,000/-) under Section 49(1)(c), based on gross salary of Kshs. 389,300/-

Reasoning

The court considered the casual disregard for procedural and substantive fairness by the Respondent, the Claimant's legitimate expectation to serve to contract end, and his roughly 6 years and 10 months of service, awarding compensation capped at 10 months' gross salary, the salary figure being uncontroverted.

p. 9

Legal principles established

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  • The burden of proving that an unfair termination occurred rests on the employee, while the burden of justifying the grounds for termination rests on the employer
  • Where a Respondent files a Statement of Response but adduces no evidence at trial, the Statement of Response has no evidential value
  • A valid termination requires both substantive justification and procedural fairness

Court orders

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  1. 1.A declaration that the Claimant's dismissal was unfair and wrongful
  2. 2.The Claimant be paid compensation for unfair termination, tabulated at Kshs. 3,893,000/- (Kshs. 389,300/- x 10 months)
  3. 3.The Claimant be issued with a Certificate of Service within 30 days of the Judgment
  4. 4.Interest on the compensation at Court rates from the date of judgment until payment in full
  5. 5.The Respondent shall bear the costs of the suit

Authorities

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Legislation

  • Employment ActSections 41, 43, 44, 45, 47(5), 49(1)(c), 50, 51
  • Constitution of KenyaArticles 10, 28, 41, 47, 48, 50, 159(2)(d)
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (7)

  • Ken Freight (EA) Limited vs Benson K. Nguti
    [2016] eKLR
  • Walter Ogal Anuro –v- Teachers Service Commission
    (2013) eKLR
  • Standard Group Limited v Jenny Luesby
    [2018] eKLR
  • Kenya Airways vs Aviation & Allied Workers Union
    (2013) eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
  • Rooks vs Benard
    [1964] 1 ALL ER, 367
  • Haria Industries vs P.J Products Limited
    [1970] E.A.
Jurisdiction invoked
Section 12(3) of the Employment and Labour Relations Court Act; Articles 162(2) of the Constitution (employment and labour relations jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mulama v Cezam & Associates Limited (Cause 152 of 2019) [2024] KEELRC 1173 (KLR)", Case Analysis (2024). Cause No 152 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1173/eng@2024-04-30

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