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ELRCPartially AllowedNot stated in the judgment· [2024] KEELRC 2009 (KLR)

Kenya Hotels and Allied Workers Union v Panari Hotel (Employment and Labour Relations Cause 880 of 2019) [2024] KEELRC 2009 (KLR)

Employment and Labour Relations Court
24 July 2024
AMAnna Ngibuini Mwaure
3,316 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Nairobi court awarded two hotel employees 10 months' salary each because their employer could not prove why it fired them or follow fair procedure.

What this practically means

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Executive summary

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The Claimant, a trade union registered under section 19 of the Labour Relations Act, 2007, sued the Respondent, a hospitality company, on behalf of three former employees allegedly unfairly terminated in 2018: Peter Mutinda (31/07/2018, for allegedly disparaging a guest), and Vincent Nyangau Manoti and Job Keitany Kandie (27/08/2018, on suspicion of stealing a guest's money from room 907). The Respondent maintained that due procedure was followed, including show cause notices, disciplinary hearings and appeals. The court framed two issues: whether the terminations were unfair, and whether compensation was due. Relying on sections 41, 43, 44, 45 and 47(5) of the Employment Act and the Kenfreight authority, the court held that the Respondent proved neither valid reason nor fair procedure. As to Mutinda, RW1 admitted the complaint was not in the notice to show cause and no case existed against him; the internal investigation was not produced. As to Kandie, there was no evidence of the money lost, no guest's written report, and the CCTV footage and police records were not availed. Vincent Manoti did not testify or file submissions and his claim was left undetermined. Judgment was entered for Mutinda and Kandie with 10 months' salary each as compensation (Kshs 401,050 and Kshs 234,410 respectively), plus interest at court rates from the date of judgment and costs. The judgment was delivered virtually in Nairobi on 24th July 2024.

Key legal issues

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01

Whether the termination of Peter Mutinda was substantively justified

Holding

Not justified - there was no causal link between the grievant and the complaint of disparaging a guest

Reasoning

The Respondent alleged Mutinda was dismissed for disparaging Dr Beatrice Muganda to another guest. RW1 testified the complaint was not included in the notice to show cause, no case existed against him, the internal investigation and warning letters were not produced in court, and Mutinda never spoke to Dr Muganda. The court therefore found no valid or proved reason for the termination.

p. 6
02

Whether the termination of Job Keitany Kandie was substantively justified

Holding

Not justified - the alleged theft of a guest's money from room 907 was not substantiated

Reasoning

The Respondent claimed Kandie was dismissed for suspected theft of a guest's money. RW1 admitted the notice to show cause, hearing invitation and dismissal letter did not state the amount lost, the guest's written report was not produced, CCTV footage and police records were not availed, and no charge followed the police report. The allegations were thus unsubstantiated.

p. 7
03

Whether the terminations were procedurally fair under section 41 of the Employment Act

Holding

Procedure was not followed; the mandatory hearing requirements of section 41 were breached

Reasoning

Mutinda testified he never attended a disciplinary hearing despite being invited, having requested the evidence against him which was not supplied. Kandie attended a hearing but was not supplied with the police or supervisor report. RW1 conceded documents were not traced or produced. The court held the Respondent did not follow the mandatory procedure in section 41.

p. 7
04

Whether the grievants are entitled to compensation

Holding

Peter Mutinda and Job Keitany Kandie awarded 10 months' salary each as general damages for unlawful termination

Reasoning

Both grievants admitted their dues were paid, and Mutinda in cross-examination limited his claim to 12 months' compensation. The court, having found the terminations unfair and unprocedural, awarded 10 months' salary each, computed as Kshs 401,050 for Mutinda and Kshs 234,410 for Kandie, with interest and costs.

p. 7

Legal principles established

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  • For a termination to be fair and lawful the employer must prove both substantive justification and procedural fairness
  • An employer must, before terminating for misconduct, explain the reasons to the employee and hear and consider the employee's representations as required by section 41 of the Employment Act
  • Where the employer fails to produce evidence of the alleged misconduct (such as internal investigation reports, CCTV footage or the complainant's written report), the allegations are unsubstantiated and the termination lacks valid reason

Court orders

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  1. 1.Judgment entered in favour of Peter Mutinda and Job Keitany Kandie, their terminations having been found unlawful and unprocedural
  2. 2.General damages for unlawful termination awarded at an equivalent of 10 months' salary each: Kshs 401,050/- to Peter Mutinda and Kshs 234,410/- to Job Keitany
  3. 3.Accruing interest at court rates from the date of judgment until full payment
  4. 4.Costs of the claim awarded to Peter Mutinda and Job Keitany

Authorities

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Legislation

  • Labour Relations ActSection 19
  • Employment ActSections 41, 43, 44(4)(e) and (g), 45(2), 47(5)
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (2)

  • Kenfreight (E.A) Limited v Benson K. Nguti
    Petition 37 of 2018; [2019] eKLR; also cited as (2016) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (specific enabling provision not stated in the 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, "Kenya Hotels and Allied Workers Union v Panari Hotel (Employment and Labour Relations Cause 880 of 2019) [2024] KEELRC 2009 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2009/eng@2024-07-24

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