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ELRCDismissedMemorandum of Claim dated 15th January 2020· [2024] KEELRC 1213 (KLR)

Musembi v Intraspeed Arcpro Kenya Ltd (Cause 33 of 2020) [2024] KEELRC 1213 (KLR)

Employment and Labour Relations Court
24 April 2024
DMD. K. Njagi Marete
2,975 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan employee lost his unfair dismissal claim because his employer's documented disciplinary process proved stronger than his evidence.

What this practically means

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Executive summary

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The Claimant, formerly Operations Manager and later Customs Affairs Manager of the Respondent, sued by Memorandum of Claim dated 15th January 2020 alleging unlawful, unfair and wrongful summary dismissal, violation of fair labour practices, and miscalculation or non-payment of dues. He claimed his dismissal on 29th October 2019 followed his protest at being coerced to resign, that a show cause letter was issued only after his dismissal, and that the subsequent disciplinary process was a sham because he was denied the investigation findings and evidence behind fraud allegations concerning Radiation Board payments. He sought 12 months' salary as compensation, one month's notice pay, accumulated leave for nine years, overtime, interest and costs. The Respondent denied the claim, asserting that due process under sections 41, 43, 45 and 47(5) of the Employment Act, 2007 was followed: show cause, response, a disciplinary hearing on 15th November 2019, and a dismissal letter dated 2nd December 2019 with final dues paid. Framing three issues - lawfulness of termination, entitlement to relief, and costs - the court found the Respondent's documentary evidence and witness statement overwhelming and the Claimant's case hollow and unsubstantiated. It held the termination lawful, disentitled the Claimant to relief, and dismissed the claim, but exceptionally ordered each party to bear their own costs.

Key legal issues

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01

Whether the summary dismissal was wrongful, unfair and unlawful

Holding

Termination was lawful and fair; the Respondent proved due process

Reasoning

The court found the Respondent's case, supported by a detailed trial bundle and the witness statement of Joan Wachira, overwhelming. The Claimant's case and submissions were held to be hollow and unsubstantiated. The disciplinary process, from the show cause letter of 29th October 2019 to the dismissal letter of 2nd December 2019, was accepted as duly instituted and fair.

p. 7
02

Whether the Claimant is entitled to the relief sought

Holding

Claimant disentitled to relief

Reasoning

Having failed on the primary issue of unlawful termination, the claimant could not sustain the consequential claims for compensation, notice pay, leave and overtime. The relief fell with the principal finding.

p. 7
03

Costs

Holding

Each party to bear their own costs despite dismissal

Reasoning

Though the claim was dismissed, the court declined to award costs to the Respondent as ordinarily follows dismissal, instead ordering each party to bear their own costs.

p. 7

Legal principles established

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  • Employers bear heavy statutory obligations in summary dismissal, including proving valid reasons and following the notification and hearing process under sections 41-47 of the Employment Act

Court orders

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  1. 1.Claim dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007section 44(4)(g)
  • Employment Act, 2007section 45
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 47(5)

Cases cited (3)

  • Anthony Kelly Muema v Airtel Networks Kenya Limited
    (2017) eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture & Technology
    (2014) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007)

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, "Musembi v Intraspeed Arcpro Kenya Ltd (Cause 33 of 2020) [2024] KEELRC 1213 (KLR)", Case Analysis (2024). Memorandum of Claim dated 15th January 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1213/eng@2024-04-24

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