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ELRCDismissedELR Appeal from Malindi CMCC ELR Case No. 99 of 2019· [2024] KEELRC 1368 (KLR)

H. Young & Co. [E. A] Limited v Masika (Appeal E009 of 2021) [2024] KEELRC 1368 (KLR)

Employment and Labour Relations Court
6 June 2024
ANAgnes Kitiku Nzei
2,491 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan employer's rushed, vague disciplinary process made a dismissal unfair, and the appeal court upheld every award against it.

What this practically means

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Executive summary

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This judgment disposes of the Appellant's first appeal against the Malindi Chief Magistrate's Court decision in ELR Case No. 99 of 2019 delivered on 18/10/2022, which had declared the Respondent's termination unfair and awarded him twelve months' salary as compensation (Kshs. 438,312), untaken leave for three years (Kshs. 76,704), and one month's salary in lieu of notice (Kshs. 36,526), plus costs. The Respondent, employed from 8/5/2017 and confirmed permanent on 1/11/2017, was summarily dismissed on 29/7/2019 after a disciplinary process conducted over four days, following a show cause letter giving him one day to respond and requiring him to travel approximately 100KM from his duty station at Minjila to Witu for a hearing communicated on the day of the hearing. The ELRC, on a first appeal, re-evaluated the evidence while cognizant that it neither saw nor heard the witnesses. Framing two issues — whether the termination was unfair and whether the reliefs granted were deserved — the Court held the show cause letter was general and lacked specific allegations, did not inform the Respondent of his Section 41 rights, and that warnings cannot found future disciplinary action. The employer failed to prove a valid reason under Section 43(1) and complied with neither substantive nor procedural fairness. The Court applied the Court of Appeal's decision in Naima Khamis v Oxford University Press. All awards were upheld, the unauthenticated computer-generated leave statement was given no evidential value for non-compliance with Section 74(g), and the appeal was dismissed with costs to the Respondent.

Key legal issues

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01

Whether termination of the Respondent's employment was unfair

Holding

Termination was both substantively and procedurally unfair

Reasoning

The show cause letter was general, lacking specific allegations, gave the Respondent only one day to respond, and required him to travel about 100KM to a hearing communicated on the same day, without a fellow employee or union official as required by Section 41. The employer also failed to prove a valid reason for termination under Section 43(1). The entire process took only four days, showing the employer did not act in accordance with justice and equity.

p. 5
02

Whether the award of 12 months' salary as compensation was deserved

Holding

Upheld, taking into account the manner and circumstances of termination

Reasoning

Given the extremely unfair procedure — one day's notice, a 100KM journey to a hastily convened hearing, and absence of Section 41 rights — the Court found the trial Court's award of the equivalent of 12 months' salary justified and upheld it.

p. 6
03

Whether the award for untaken leave days was deserved

Holding

Upheld

Reasoning

The Appellant's alleged leave statement was an unauthenticated computer-generated sheet that did not accord with Section 74(g) of the Employment Act. No evidence showed when leave was applied for or how many days were outstanding at termination, so the Court declined to attach evidential value to it and upheld the award of Kshs. 76,704.

p. 6
04

Whether the award of payment in lieu of notice was deserved

Holding

Upheld

Reasoning

It was not demonstrated that the Respondent was given a termination notice pursuant to Section 35(1)(c) of the Employment Act, so the award of Kshs. 36,526 in lieu of notice was upheld, as was the award of costs to the Respondent in the lower Court suit.

p. 6

Legal principles established

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  • Allegations made in warning letters cannot be the basis of future disciplinary actions, though they can inform the severity of a disciplinary action for future misconduct
  • A show cause letter must set out specific and particular allegations, and an employer must prove valid reason and fair procedure under Sections 43 and 45 of the Employment Act

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent
  2. 2.The trial Court's finding that termination was substantively and procedurally unfair is upheld
  3. 3.The award of 12 months' salary as compensation for unfair termination is upheld
  4. 4.The award of Kshs. 76,704 for untaken leave is upheld
  5. 5.The award of Kshs. 36,526 in lieu of notice is upheld
  6. 6.The award of costs to the Respondent in the lower Court suit is upheld
On appeal from
Malindi Chief Magistrate's Court
ELR Case No. 99 of 2019
Jurisdiction invoked
First appeal from the Malindi Chief Magistrate's Court in an employment and labour relations matter

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, "H. Young & Co. [E. A] Limited v Masika (Appeal E009 of 2021) [2024] KEELRC 1368 (KLR)", Case Analysis (2024). ELR Appeal from Malindi CMCC ELR Case No. 99 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1368/eng@2024-06-06

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