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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 1538 (KLR)

Kipyegon v Kigen t/a Patriotic Guards and Sattelite Fleet Management Solutions (Employment and Labour Relations Cause 857 of 2015) [2024] KEELRC 1538 (KLR)

Employment and Labour Relations Court
13 June 2024
1,342 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a dismissed driver over Kshs.1.5 million because his employer could not prove a valid reason or fair dismissal process.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi (Mathews Nderi Nduma, Judge) allowed in part a claim by a former driver against Titus Kigen T/A Patriotic Guard and Satellite Fleet Management Solutions. The claimant alleged he was employed from around 2007 at a monthly salary of Kshs.13,500 and was stopped from working on or about 1/3/2014 without notice, with accrued salary arrears. He sought arrear salary of Kshs.1,411,000, damages for unlawful dismissal and costs, having abandoned a claim for reinstatement due to advanced age. An application to substitute Patriotic Guards Company Ltd as respondent after both parties closed their cases was refused as it was too late to introduce a new party. The respondent's witness (Titus Kipkoech Kigen) alleged the claimant was a drunkard, disobedient, caused accidents and had three warnings including a final written warning dated 25/9/2013, and was summarily dismissed after tendering a resignation which the company refused. The court held the respondent failed to prove a valid reason or a fair procedure: there was no notice to show cause and no disciplinary hearing, breaching sections 36, 41, 43 and 45 of the Employment Act, 2007. The unrebutted claim for arrear salary was awarded in full, and compensation of eight months' salary (Kshs.120,000) was granted under section 49, with no deduction for contribution. Judgment was entered for Kshs.1,551,000 with interest at court rates from the date of judgment and costs of the suit to the claimant.

Key legal issues

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01

Validity of the summary dismissal

Holding

The summary dismissal was unlawful and unfair; the respondent proved neither a valid reason nor a fair procedure, violating sections 36, 41, 43 and 45 of the Employment Act, 2007.

Reasoning

RW1 alleged gross misconduct based on drunkenness, disobedience and accidents, but the respondent tendered no evidence of a notice to show cause or of a disciplinary hearing at which the claimant could answer the charges. Apart from general allegations and a final written warning dated 25/9/2013, the respondent could not demonstrate the specific valid reason for the dismissal. The burden under sections 41 and 43 of the Employment Act therefore was not discharged.

p. 3
02

Entitlement to compensation for unfair dismissal

Holding

The claimant was entitled to compensation under section 49(1)(c) and 4 of the Employment Act, awarded at the equivalent of 8 months' salary (Kshs.120,000), with no deduction for contribution since the claimant was never given a hearing.

Reasoning

Having served from 2006/2007 to March 2014, the claimant was awarded eight months' salary as compensation. The court found the claimant did not contribute to the dismissal because no charges were ever put to him at a hearing. The claim for reinstatement having been abandoned, damages were the appropriate remedy. Arrear salary of Kshs.1,411,000 was granted as it was unrebutted by the respondent.

p. 3
03

Application to amend the respondent's name to a limited liability company

Holding

The application was refused as it came too late in the proceedings to introduce a new party.

Reasoning

After both parties closed their cases, the claimant sought to substitute Patriotic Guards Company Ltd for Titus Kigen T/A Patriotic Guards. The court held that introducing a limited liability company as a new party at that advanced stage would be improper. The suit therefore proceeded against the original respondent as named.

p. 1

Legal principles established

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  • An employer must prove a valid reason and a fair procedure (notice to show cause and disciplinary hearing) before summarily dismissing an employee, per sections 41, 43 and 45 of the Employment Act
  • The onus of proving the reason for dismissal lies on the employer under section 43(1) and 2 of the Employment Act
  • Unrebutted evidence of unpaid salary must be accepted by the court

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent
  2. 2.Kshs.1,411,000/= being payment of arrear salary
  3. 3.Kshs.120,000/= compensation for unlawful dismissal (total award Kshs.1,551,000/=)
  4. 4.Interest at court rates from date of judgment till payment in full
  5. 5.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Act, 2007section 41
  • Employment Act, 2007sections 43(1) and 2
  • Employment Act, 2007sections 36, 41, 43 and 45
  • Employment Act, 2007sections 49(1)(c) and 4
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007 invoked); specific enabling provision not cited in judgment

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, "Kipyegon v Kigen t/a Patriotic Guards and Sattelite Fleet Management Solutions (Employment and Labour Relations Cause 857 of 2015) [2024] KEELRC 1538 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1538/eng@2024-06-13

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