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ELRCPartially AllowedNot stated in the judgment text provided· [2024] KEELRC 2035 (KLR)

Mutunga v Safaricom Kenya Limited (Cause 133 of 2016) [2024] KEELRC 2035 (KLR)

Employment and Labour Relations Court
25 July 2024
DNDavid Nderitu
5,920 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled Safaricom unfairly dismissed a part-time worker without any disciplinary hearing, but limited her compensation to her remaining contract months.

What this practically means

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Executive summary

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In this first-instance employment cause before the Employment and Labour Relations Court at Nakuru, the claimant alleged that she was engaged by the respondent in 2011/2012 as an M-Pesa customer care attendant at a monthly salary of Kshs85,000 and was unfairly and unlawfully terminated in mid-2013 after being arraigned on criminal charges of unauthorised access to computer data arising from a customer complaint. She was later acquitted on appeal in the High Court. She sought notice pay, two months' suspension pay, and maximum compensation of 12 months' salary under section 49(1)(c) of the Employment Act, plus costs. The respondent filed a preliminary objection that the cause had abated for non-service of summons issued in 2016, and otherwise denied liability, contending the claimant was on six-month part-time hourly contracts of Kshs251.25 per hour and never earned a fixed monthly salary. The court rejected the preliminary objection, holding it would be unfair to punish the claimant for the court's failure to issue summons, and that the respondent suffered no prejudice. It found an employment relationship on six-month periodic part-time contracts, with no fixed monthly pay. The court held that the claimant was suspended in March 2013 over criminal allegations and that the respondent, which produced no employment records and held no disciplinary hearing, failed to justify the termination; the dismissal was therefore wrongful, unfair and unlawful for want of procedural fairness, the acquittal not being a bar to discipline. Awards were limited to the last known monthly pay of Kshs24,327.70 as notice pay and compensation equal to four months' remaining contract earnings. The claim was partially allowed with costs to the claimant; total award Kshs121,638.50.

Key legal issues

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01

Preliminary objection on abatement for non-service of summons

Holding

The PO was rejected; the court's failure to issue summons in 2016 could not be visited on the claimant, and the respondent suffered no prejudice having been served with fresh summons and having defended the cause on the merits.

Reasoning

There was no record that the initial summons was issued; the court file went missing for a lengthy period. Fresh summons was issued in August 2021, the respondent was served, filed a response and fully participated. Striking out the cause would amount to elevating technicality over merits, so the court proceeded to determine the cause on its merits.

p. 7
02

Existence and terms of the employment relationship

Holding

An employment relationship existed but was on six-month periodic part-time contracts with hourly pay of Kshs251.25, not a fixed monthly salary of Kshs85,000.

Reasoning

Both parties admitted employment, contracts were produced and RW1 conceded employment. The last six-month contract from January 2013 was signed by the respondent though the claimant's copy was unsigned. Pay varied monthly and was paid by bank deposit, confirming hourly, not fixed, pay.

p. 8
03

Whether the suspension and subsequent termination were fair and lawful

Holding

The termination was unfair and unlawful for want of procedural fairness: no disciplinary process was ever commenced or carried out against the claimant.

Reasoning

The court believed the claimant that she was suspended in March 2013 over criminal allegations and denied access to work. The employer may have had substantive grounds under section 44(4)(d), but no disciplinary hearing was held even after the acquittal, and no records explained how the employment ended, so the respondent failed to justify the termination.

p. 9
04

Reliefs: notice pay and compensation

Holding

Notice pay of one month's last known pay (Kshs24,327.70) was awarded, plus compensation limited to four months' remaining contract earnings (Kshs97,310.80); the claims for two months' suspension pay and 12 months' compensation were refused.

Reasoning

Because pay was hourly and fluctuated, the last known pay (March 2013, Kshs24,327.70) was adopted as the measure. The fixed-term contract had only four months remaining, so compensation could not extend to 12 months' gross pay; awards were based on that figure without statutory deductions since the base was net pay.

p. 10

Legal principles established

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  • A party should not be punished for the court's own failure to issue summons, and a cause will not be struck out on such a technicality where the defendant suffered no prejudice and was heard on the merits.
  • A dismissal without a disciplinary process or procedural fairness is unfair and unlawful even where the employer may have had substantive grounds for discipline.
  • Acquittal in criminal proceedings does not bar or immunise an employee from employer disciplinary action, as the two processes are distinct.
  • Compensation for unfair termination of a fixed-term contract is limited to the earnings for the unexpired balance of the contract.
  • Where pay fluctuates, the last known pay is a reasonable basis for assessing notice pay and related awards.

Court orders

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  1. 1.A declaration be and is hereby issued that the dismissal of the claimant by the respondent was wrongful, unfair, and unlawful.
  2. 2.The claimant is awarded a total of Kshs121,638.50 made up of one month's salary in lieu of notice (Kshs24,327.70) and compensation for wrongful, unfair, and unlawful dismissal (Kshs97,310.80).
  3. 3.Costs of the cause to the claimant.

Authorities

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Legislation

  • Employment ActSection 35
  • Employment ActSection 36
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44(4)(d)
  • Employment ActSection 45
  • Employment ActSection 47(5)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 90
  • Employment ActSection 10(6)
  • Employment ActSection 10 (submissions cite 10(b) on employment records)
  • Evidence ActSection 107
  • Civil Procedure RulesOrder 5 Rule 6
  • Employment and Labour Relations Court (Procedure) RulesRule 11(2) & (3)
  • Kenya Communication (Amendment) Act, 2008Section 83(4)(1)

Cases cited (7)

  • Samuel Kabui Munyiri v Pioneer Plumbers Limited
    (2019) eKLR
  • Zois (EPZ) Limited v Paul Mzee Malonza
    (2021) eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    (2021) eKLR
  • Protus Wanjala Mutike v Anglo African Properties t/a Jambo Mutara Lodge Laikipia
    (2021) eKLR
  • David O. Owino v Kenya Institute of Special Education
    (2013) eKLR
  • James Mugeria Igati v Public Service Commission
    (2014) eKLR
  • Albert Ouma Akeyo v Maguna Andu Self Selection Stores Ltd
    (2013) eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution / Employment and Labour Relations Court Act (first-instance employment cause; the judgment does not expressly cite the provision)

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, "Mutunga v Safaricom Kenya Limited (Cause 133 of 2016) [2024] KEELRC 2035 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2035/eng@2024-07-25

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