Kinuka v Powermax General Electrical Merchants Limited (Cause 1996 of 2017) [2024] KEELRC 1754 (KLR)
The bottom line
#A Kenyan court ruled a manager's summary dismissal unfair because the employer skipped the mandatory hearing process and couldn't prove its reasons, awarding Sh. 720,000.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's dismissal from employment was unfair and unlawful
- 2.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the Respondent proved valid reasons for the summary dismissal (substantive fairness)
The Respondent failed to justify the reasons - the standing orders and 'right procedures' allegedly breached were never produced or identified, and the Eric Boro termination was sanctioned by other signatories
The dismissal letter cited failure to follow right procedures in terminating Eric Boro and absconding. However, the standing orders referred to in the contract were never availed, no clause was identified, and RW1 confirmed the Eric Boro termination letter was co-signed by the Operations Manager and Director. The Claimant's contract did not include terminating employees as a duty. The Respondent offered no evidence of contacting the Claimant about absconding despite her written enquiries. Reasons were thus unproved.
Whether the summary dismissal was procedurally fair under section 41 of the Employment Act
Procedurally unfair - no show cause letter, no notification of allegations, no hearing or disciplinary proceedings before the summary dismissal
Section 41 requires notification, representations and a disciplinary hearing before termination. It was not in dispute this was a summary dismissal and the Respondent conceded no disciplinary hearing took place because the Claimant was allegedly not reachable. Even if the conduct amounted to gross misconduct, the mandatory procedure had to be followed. Its breach rendered the dismissal procedurally unfair.
Whether the Claimant absconded duty so as to justify summary dismissal under section 44(4)(a)
Absconding was not substantiated; the Respondent's evidence was contradictory and it made no effort to reach the Claimant, who was inquiring about her job
The Respondent alleged absconding from 19th May to 5th June 2017 but gave contradictory accounts - saying she was away one week yet the dismissal letter claimed absence to date of dismissal, and she was replaced before dismissal. She wrote an email and letter inquiring about her job which the Respondent received and ignored, yet summoned her to collect the dismissal letter. The court found she left only because she was told to do so.
What reliefs the Claimant was entitled to
One month's salary in lieu of notice plus eight months' salary as compensation, certificate of service, costs and interest
The contract provided for one month's notice, so summary dismissal entitled her to notice pay. For compensation, the court considered her four years of service, that the contract could have been lawfully terminated by either party, and the circumstances of termination, settling on eight months' salary instead of the twelve sought.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive and procedural fairness
- Section 41 of the Employment Act sets out a mandatory procedure of notification and hearing before termination, applicable even to summary dismissal
- The employer bears the burden of proving valid and fair reasons for termination, including the existence of any standing orders or procedures allegedly breached
Court orders
#- 1.Claim allowed; Respondent to pay salary in lieu of notice of Kshs 80,000/=; 8 months' salary as compensation for unfair termination of Kshs 640,000/=, total Kshs 720,000/=
- 2.Respondent to issue the Claimant with a certificate of service
- 3.Costs and interest of the suit awarded to the Claimant
- 4.Items (a) and (b) subject to taxes and statutory deductions but to attract interest at court rates from date of judgment until payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution of Kenya, 2010 and the Employment Act (Articles 41 and 47 and sections 41, 43, 44, 45 and 47(5) of the Employment Act invoked)
Relief refused
#12 months' compensation for unfair dismissal
Court awarded 8 months instead, considering the claimant's four years of service and the circumstances of termination
General and exemplary damages
Not awarded; court did not grant the prayer, awarding only notice pay and compensation
Costs
The Claimant's claim was allowed with costs of the suit awarded to the Claimant, with interest at court rates from the date of judgment until payment in full.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is now established requirement that for termination to pass fairness test there must be both substantive and procedural fairness.
In conclusion this court finds and holds that the Respondent did not justify its reasons for terminating the Claimant's employment as required by section 47(5) of the Employment Act hence the termination of her service was unfair within the meaning of section 45 of the Employment Act.
Even if the Claimant's conduct amounted to gross misconduct, which the court is of the opinion that it did not, Section 41 sets out the mandatory procedure to be followed before termination.
it is good practice for an employer to take the initiative of contacting the employee where an employee absconds work and find out the reason for the failure to present themselves for work.
In conclusion the Claimant's claim is hereby allowed with costs as follows;
8 months' salary as compensation for unfair termination ………………………….Kshs 640,000/= TOTAL……………………….….KSHS….720,000/=
It is so ordered.
Issues in the judgment
#Typographical corruption in the framing of the issues for determination
Numbered orders (c) and (d) run together in one line in the disposition
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinuka v Powermax General Electrical Merchants Limited (Cause 1996 of 2017) [2024] KEELRC 1754 (KLR)", Case Analysis (2024). Employment and Labour Relations Court Claim dated 15th September 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1754/eng@2024-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.