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ELRCPartially AllowedCause No E004 of 2023· [2024] KEELRC 1425 (KLR)

Mwaura v Sala Terrena Creative Construction Limited (Cause E004 of 2023) [2024] KEELRC 1425 (KLR)

Employment and Labour Relations Court
26 April 2024
MMM. MBARŨ
4,693 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a construction manager's dismissal unfair because he faced disciplinary charges alone, without a colleague of his choice.

What this practically means

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Executive summary

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The claimant, employed as a construction project manager on 1 September 2022 at a gross salary later reviewed to Ksh.177,098, sued after his dismissal on 13 June 2023. He had received three warning letters in May 2023 for neglect of duty, attended a disciplinary hearing on 5 June 2023 where 11 charges were tabled, and was dismissed after declining an inducement to resign. He claimed one month's notice pay, unpaid house allowances, 12 months' compensation, and general damages for defamation arising from the termination report to the Kilifi Labour Officer. The respondent maintained the dismissal was for neglect of duties and poor performance, that due process was followed, that his salary was consolidated, and that all terminal dues were paid. The court framed three issues: unfair termination, defamation, and remedies. It held that neglect of duty and poor performance require objective, pre-established assessment criteria applied to the employee, which were absent; and that the mandatory due-process requirements of Section 41 of the Employment Act, including accompaniment by a fellow employee of the employee's choice, were not secured. Termination was therefore unfair, though the claimant's conduct (three warnings, unauthorized absence) reduced compensation to two months' gross salary. The defamation claim failed because reporting the dismissal to the Labour Officer was a statutory duty under Section 18. The house allowance claim failed as the salary was consolidated under a written contract. Judgment entered for the claimant: a declaration of unfair termination, compensation of Ksh.354,196, notice pay of Ksh.177,098, 50% of costs, and directions on the certificate of service.

Key legal issues

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01

Whether termination was procedurally fair under Section 41 of the Employment Act

Holding

Termination was procedurally unfair because the claimant was not accompanied by a fellow employee of his choice at the disciplinary hearing

Reasoning

Section 41 prescribes mandatory procedural elements for fair termination. The respondent's witness admitted the invitation to bring a witness was not recorded in the minutes or addressed in the hearing notice. The claimant faced senior officers alone. This lapse rendered the disciplinary hearing outcome unlawful and termination unfair under Section 45.

p. 7
02

Whether neglect of duty and poor performance were substantively justified

Holding

The respondent failed to prove neglect of duty or poor performance to the required standard

Reasoning

The employer must have objective performance measurement criteria in place, known and applied to the employee, and must support the employee to improve. The claimant was confirmed despite alleged shortcomings, salary increased, and no objective assessment was shown. Warning letters were issued before any such assessment.

p. 6
03

Whether the report to the Kilifi Labour Officer was defamatory

Holding

No defamation; the report was a statutory duty under Section 18 of the Act

Reasoning

Section 18(5)(b) obliges an employer to report a dismissal to the Labour Officer within seven days. The publication complained of was a lawful discharge of this duty and the claimant cited no other recipients, so the defamation claim failed.

p. 9

Legal principles established

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  • Neglect of duty must be assessed against objective criteria known to the employee and applied before termination
  • Section 41 procedural requirements apply even to summary dismissal for neglect of duty or poor performance
  • An employee must be accompanied by a fellow employee of his choice at a disciplinary hearing; failure renders termination unfair

Court orders

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  1. 1.A declaration there was unfair termination of employment
  2. 2.Compensation Ksh.354,196
  3. 3.Notice pay Ksh.177,098
  4. 4.50% of costs
  5. 5.The claimant is to collect his Certificate of Service within 14 days after which the respondent is to deposit the same with the Labour Officer

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 41(2)
  • Employment Act, 2007Section 44(4)(c)
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 45(5)(b)
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 49(2)
  • Employment Act, 2007Section 18 / 18(5)(b)
  • Employment Act, 2007Section 26(1)
  • Employment Act, 2007Section 31(2)
  • Employment Act, 2007Section 51
  • Employment Act, 2007Section 8

Cases cited (12)

  • Karisa v Texas Alarms (K) Limited
    Cause No. 292 of 2018
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu
    [2019] eKLR
  • Naqvi Syed Omar v Paramount Bank Limited & Another
    [2015] eKLR
  • Miguna v Standard Group Limited & 4 others
    [2017] eKLR
  • Rebecca Ann Maina & 2 others v Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Trevar Marambe v For You Chinese Restaurant
    [2021] eKLR
  • Pheoby Aloo Inyanga v Stockwell One Homes Management Limited & another
    [2022] eKLR
  • National Bank of Kenya v Samuel Nguru Mutonya
    [2019] eKLR
  • Okoth v Jamii Telecommunication Limited
    (Cause 1556 of 2018) [2023] KEELRC 1643 (KLR) (10 July 2023)
  • Postal Corporation of Kenya v Andrew K Tanui
    (2019) eKLR
  • Mary Chamweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the 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, "Mwaura v Sala Terrena Creative Construction Limited (Cause E004 of 2023) [2024] KEELRC 1425 (KLR)", Case Analysis (2024). Cause No E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1425/eng@2024-04-26

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