Mukono v Dan K Ameyo Francis Etole t/a Guto, Etole & Co Advocates (Cause E727 of 2020) [2024] KEELRC 1261 (KLR)

Although the Claimant argued the demand for explanation was not a notice to show cause, the court held it was, as it demanded a specific account of the dismissal of Petition No. 9 of 2017 and defective affidavits. The Claimant's own response revealed lapses in commissioning affidavits, so the employer may have had a reason, but because the Respondent tendered no evidence, it failed to discharge its burden under Section 43 to prove a valid and fair reason.

Section 41 prescribes mandatory procedural precepts: notification of allegations and a hearing. The record showed only a written demand for explanation and a written response, with no evidence of any communication between the response of 6th November 2017 and the termination on 10th November 2017. The Claimant was therefore not taken through a disciplinary process, rendering the summary dismissal procedurally unfair.

Section 90 of the Employment Act requires civil actions arising from a contract of service to be commenced within three years. Using the June 2017 salary as the latest claim, the cause of action arose on 30th June 2017 and limitation expired on 1st July 2020, before the suit filed on 10th November 2020. Section 90 is mandatory and confers no discretion to extend time, so the court declined jurisdiction over those claims.

Section 31 of the Employment Act obliges employers to provide housing unless the contract provides for consolidation. Clause 4 of the appointment letter expressly paid a lump sum covering salary and all allowances. Since the Respondent did not provide housing, the consolidation clause meant no separate house allowance was payable, rendering the claim unsustainable.

Having found the dismissal unfair, the court exercised discretion under Section 49(1)(c), considering about 5 years of service, absence of an appeal or wish to remain employed, a clean disciplinary record, and the Claimant's substantial contribution to the termination through negligent handling of affidavit commissioning. These factors led the court to fix compensation at the equivalent of 4 months gross salary as fair.

Article 27 of the Constitution and Section 5(3) of the Employment Act outlaw discrimination, but the Claimant provided no particulars and no evidence that other employees were paid while he was not, nor why he remained employed for years without pay without complaint. The court found it atypical that an employee would work three consecutive months unpaid and do nothing, concluding the Claimant was not forthright and the claim was unmerited.