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ELRCPartially Allowed· [2024] KEELRC 1974 (KLR)

Musau v Pembe Flours Mills Limited (Employment and Labour Relations Cause E596 of 2022) [2024] KEELRC 1974 (KLR)

Employment and Labour Relations Court
26 July 2024
AMAnna Ngibuini Mwaure
3,506 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a security guard's dismissal unfair because his employer skipped a proper disciplinary hearing, awarding him over Kshs 237,000.

What this practically means

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Executive summary

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The Claimant, a security guard employed by the Respondent from February 2013 until his termination on 1st October 2019, sued for unfair termination and non-compensation for a 2018 workplace injury. He was accused of abandoning his duty post at Gate B on 9th August 2019, during which copper wire was stolen, and of failing to report persons he saw cutting the electricity cable. The Respondent issued a notice to show cause, received the Claimant's written response dated 24th August 2019, and terminated his employment without holding a disciplinary hearing. The court framed two issues: whether the termination was unfair/unlawful, and whether the Claimant was entitled to the reliefs sought. Applying Sections 41, 43 and 45 of the Employment Act, the court found the Respondent had a valid reason for termination because the Claimant admitted abandoning his station and failing to raise the alarm. However, the termination was procedurally flawed: the Claimant was neither invited to a disciplinary hearing, accorded his statutory right to accompaniment, nor were his representations considered. The termination was therefore unfair and unlawful. On reliefs, the court ordered payment of the DOSH injury compensation within seven days, one month's notice pay of Kshs 21,000, gratuity of Kshs 111,736 as admitted by the Respondent, and compensation of five months' salary (Kshs 105,000) rather than the twelve months sought, with interest from the date of judgment and costs to the Claimant. Judgment was delivered virtually in Nairobi on 26th July 2024 by Mwaure J.

Key legal issues

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01

Whether the termination of the Claimant's employment was unfair/unlawful

Holding

Substantively justified but procedurally unfair; therefore unfair and unlawful.

Reasoning

The Claimant admitted abandoning his station and failing to report the cutting of the electricity cable, giving the Respondent a valid reason under Section 43. However, the Respondent only issued a notice to show cause and considered a written response; it did not hold a disciplinary hearing, explain the grounds in a language the employee understood, offer accompaniment, or hear and consider representations as required by Section 41. Procedural unfairness rendered the termination unfair.

p. 7
02

Whether the Claimant is entitled to the reliefs sought

Holding

Partially - notice pay, admitted gratuity, 5 months' compensation and DOSH award granted; certificate of service already received.

Reasoning

The Respondent had itself prepared terminal dues including notice pay and gratuity and a DOSH-based cheque of Kshs 144,135 which the Claimant refused to collect. The court ordered payment of the injury dues within seven days, one month's notice pay, the admitted gratuity of Kshs 111,736, and compensation of 5 months' salary, with interest and costs.

p. 7

Legal principles established

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  • A termination is unfair where the employer fails to prove a valid and fair reason and fair procedure under Section 45(2) of the Employment Act
  • The procedure under Section 41 of the Employment Act is mandatory and must be followed before termination or summary dismissal

Court orders

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  1. 1.Claimant's dues for injury (DOSH compensation) to be paid to him within seven (7) days
  2. 2.One month salary in lieu of notice Kshs 21,000/-
  3. 3.Gratuity as admitted by the respondent Kshs 111,736/-
  4. 4.5 months' salary equivalent for compensation for general damages Kshs 105,000/-
  5. 5.Total award of Kshs 237,736/- plus DOSH payment, with interest accruing from date of judgment till full payment
  6. 6.Costs to be paid by the respondent

Authorities

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Legislation

  • Employment ActSection 45(2)
  • Employment ActSections 41, 43, 47(5)
  • Employment ActSection 44(4)(c) and (g)
  • Employment ActSection 35(6)
  • Employment ActSection 42(1)
  • Employment ActSection 44(3)
  • Employment ActSection 49
  • Employment ActSection 90
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Josephat Otieno Kongo v Riley Services Limited
    [2022] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • John Jaoko Othino v Intrahealth International
    [2022] eKLR
  • Postal Corporation of Kenya v K. Tanui
    [2019] eKLR
Jurisdiction invoked
Original 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, "Musau v Pembe Flours Mills Limited (Employment and Labour Relations Cause E596 of 2022) [2024] KEELRC 1974 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1974/eng@2024-07-26

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