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ELRCPartially AllowedCause No E6469 of 2020· [2024] KEELRC 1291 (KLR)

Misheck v Kenya Airways Limited (Cause E6469 of 2020) [2024] KEELRC 1291 (KLR)

Employment and Labour Relations Court
27 May 2024
JGJacob Gakeri
6,013 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employee's dismissal unfair because the employer withheld the investigation report, but awarded only modest compensation.

What this practically means

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Executive summary

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The Claimant, employed from 6th May 2014 as Manager Facilities Development (Grade H13), sued alleging unfair termination and non-payment of acting allowance. He claimed to have acted as Manager Facilities Management from 1st July 2015 at the Finance Director's request without a formal appointment letter, and sought approximately Kshs.96 million including acting allowance, pension and provident contributions, salary and medical allowance until retirement. The Respondent justified the termination on grounds that the Claimant failed to follow procurement procedures by engaging an Office Assistant through Creative Consolidated Systems Ltd without Supply Chain involvement and disobeying lawful instructions. The court framed two issues: whether termination was unfair and entitlement to reliefs. On substance, applying Section 43(2) of the Employment Act and the band of reasonable responses test, the court found the employer genuinely believed the grounds existed, the Claimant having approved the irregular recruitment and later instructed its cancellation. On procedure, however, the Respondent's refusal to avail the investigation report which formed the basis of the charges, and the unreasonably short time to respond to the notice to show cause, breached Section 41, rendering the termination procedurally unfair. On reliefs, the court declared the termination unfair and awarded acting allowance for the full 42 months and 12 days served, holding the Respondent estopped from denying the acting arrangement and characterising prolonged unformalised acting as an unfair labour practice. The alternative prayer for confirmation nunc pro tunc, pension and provident claims, and anticipatory earnings (salary and medical allowance until retirement) were dismissed for want of evidential or legal foundation. Exercising discretion under Section 49(1)(c), the court awarded the equivalent of one month's salary, factoring in the Claimant's contributory misconduct. Each party was ordered to bear its own costs. Judgment was delivered virtually at Nairobi on 27th May 2024 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Substantive justification for termination

Holding

The Respondent proved on a balance of probabilities that it had substantive justification - the Claimant approved recruitment of an Office Assistant through a third party without involving Supply Chain

Reasoning

The Claimant admitted approving the request for an Office Assistant without perusing the contract, and later instructed that the assistant's employment be terminated, an implicit admission the recruitment was irregular. Applying Section 43(2) and the band of reasonable responses test, the employer genuinely believed the grounds existed.

p. 8
02

Procedural fairness of termination

Holding

Procedure was flawed: the Respondent refused to avail the investigation report which formed the basis of the charges, and gave only 48 (extended to 72) hours to respond

Reasoning

The Claimant requested the investigation report but the Respondent refused and instead prescribed the documents it deemed sufficient, violating fair hearing rights. The refusal was unjustified and the short response period unreasonable, rendering termination procedurally unfair despite valid reasons.

p. 10
03

Acting allowance

Holding

The Claimant acted as Manager Facilities Management from 1 July 2015 at the Finance Director's instigation; the Respondent's failure to formalise the appointment does not defeat the claim; it is estopped from denying the acting

Reasoning

Evidence including the Finance Director's email, handover report and appraisals confirmed the acting. The Respondent was fully aware and acquiesced by conduct. Non-formalisation by HR was the Respondent's default, so the Claimant is entitled to acting allowance for the duration served computed per the HR Manual.

p. 11
04

Compensation under Section 49(1)(c)

Holding

Equivalent of one month's salary awarded despite no specific prayer, considering length of service, clean record, wish to continue employment and the Claimant's contributory conduct

Reasoning

The Claimant served 4 years and 9 months, had no prior disciplinary issues, wished to remain employed, but substantively contributed to his own termination by approving the irregular recruitment. One month's salary was fair in the circumstances.

p. 13

Legal principles established

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  • A fair termination requires both substantive justification and procedural fairness under Section 45 of the Employment Act
  • An employee facing disciplinary charges is entitled to the documentary materials the employer relies on, including the investigation report
  • It is an unfair labour practice to keep an employee in an acting position beyond the duration prescribed by the employer's policies
  • Claims for anticipatory earnings after termination have no legal anchorage

Court orders

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  1. 1.Declaration that termination of employment was unfair
  2. 2.Acting allowance for the duration served, 42 months and 12 days
  3. 3.Equivalent of one (1) month's salary as compensation under Section 49(1)(c) of the Employment Act
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 43(2)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 49(1)(c)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (15)

  • Edah Cherono Maiywa V University of Nairobi Enterprises & Services Ltd
    (2020) eKLR
  • Walsh V Lonsdale
    (1882) 21 Ch D. 9
  • Gichini Kagwe V Elizabeth Kusienya
    (2020) eKLR
  • Abdulhamid Ebrahim Ahmed V Municipal Council of Mombasa
    (2004) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    (2017) eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • Galgalo Jarso Jillo V Agricultural Finance Corporation
    (2021) eKLR
  • Kenya Revenue Authority V Reuwel Waithaka Gitahi & 2 others
    (2019) eKLR
  • British Leyland (UK) Ltd V Swift
    (1981) I.R.L. R 91
  • Postal Corporation of Kenya V Andrew K. Tanui
    (2019) eKLR
  • Combe V Combe
    (1951) 2 KB 215
  • Elizabeth Wakanyi Kibe V Telkom Kenya Ltd
    (2014) eKLR
  • D.K. Njagi Marete V Teachers Service Commission
    (2020) eKLR
  • National Social Security Fund V Grace Kasungu & another
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 49)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Misheck v Kenya Airways Limited (Cause E6469 of 2020) [2024] KEELRC 1291 (KLR)", Case Analysis (2024). Cause No E6469 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1291/eng@2024-05-27

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