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ELRCPartially AllowedCause No 772 of 2019· [2024] KEELRC 2106 (KLR)

Kangethe v Bic East Africa Limited (Cause 772 of 2019) [2024] KEELRC 2106 (KLR)

Employment and Labour Relations Court
30 July 2024
2,991 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a director's dismissal unlawful because the employer ignored a court order and pre-decided the outcome, awarding a year's salary plus dues.

What this practically means

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Executive summary

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The Claimant, formerly Manufacturing Director - Kenya of the Respondent, sued for unfair and unlawful termination following a disciplinary process conducted in August 2019. He had served eight months after transitioning from Haco Industries. He was suspended on 19th July 2019 over whistle-blower allegations of preferential treatment, harassment and intimidation of a Production Co-ordinator, investigated by an independent forensics firm. A disciplinary hearing on 27th August 2019 proceeded despite a Court Order of 15th August 2019 deferring it, and he was summarily dismissed on 28th August 2019, with an appeal subsequently dismissing his challenge. He sought 12 months' compensation, an additional 36 months for termination in contempt of court, unutilised leave, notice pay, consultant miscalculation, outstanding benefits, pension, pro rata bonus, a certificate of service and costs. The Respondent maintained it had valid reasons and followed fair procedure, and contended the Claimant himself breached the Court Order and that contempt could only be pursued before the issuing court. The court found the dismissal premeditated - final dues were computed before the appeal was determined - and took judicial notice that the panel defied the Court Order. Applying Walter Ogal Anuro, it held the process unfair and the dismissal unlawful. Judgment was entered for the Claimant with a declaration of unlawful dismissal, 12 months' compensation (the section 49 maximum), 21 days' leave, three months' notice pay, Kshs. 736,402.85 for consultant days, Kshs. 187,860 in outstanding benefits, interest, a section 51 certificate of service and costs. The 36-month enhancement, pension and pro rata bonus claims failed.

Key legal issues

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01

Fairness of the disciplinary process conducted despite a subsisting Court Order deferring the hearing

Holding

The dismissal was unfair because the disciplinary hearing proceeded in the face of a Court Order and the process was premeditated

Reasoning

The court found the dismissal premeditated since final dues were calculated before the internal appeal was determined. Judicial notice was taken that the panel defied a Court Order deferring the hearing. Citing Walter Ogal Anuro v Teachers Service Commission, the court held that procedural fairness is decisive irrespective of the allegations against the employee.

p. 5
02

Substantive validity of the reasons for termination

Holding

The court did not need to resolve this fully since the unfair process alone rendered the dismissal unlawful; it nonetheless awarded the statutory maximum compensation

Reasoning

The Respondent contended it had valid reasons grounded on a forensic investigation and genuine belief, citing the balance-of-probabilities standard. The court, however, grounded its finding of un lawfulness on the flawed process, invoking Anuro, and proceeded to assess reliefs under section 49 of the Employment Act.

p. 5
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Reliefs recoverable under section 49 of the Employment Act

Holding

Maximum compensation of 12 months granted; the claim for 36 months and pro rata bonus refused

Reasoning

The court held that section 49 limits the compensatory award to a maximum of 12 months' salary, refusing the 36-month claim. Pro rata bonus was refused as an unearned sum. Leave, notice pay, consultant miscalculation and outstanding benefits were proved and awarded, with interest and a section 51 certificate of service.

p. 5

Legal principles established

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  • If the disciplinary process is unfair, the dismissal will be deemed unfair and lawful regardless of the misconduct alleged
  • Calculation of final dues before an appeal is determined evidences a premeditated dismissal

Court orders

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  1. 1.A declaration that the dismissal of the Claimant was unlawful
  2. 2.12 month's salary as compensation
  3. 3.21 days of leave not utilized
  4. 4.3 month's salary in lieu of notice
  5. 5.Unpaid amounts for the 20 days worked as a consultant – Kshs. 736,402.85
  6. 6.Outstanding benefits due for the period 1st January to 31st August 2019 – Kshs. 187,860/-
  7. 7.Interest at court rates on the sums in (b), (c), (d), (e) and (f) from the date of judgment till payment in full
  8. 8.A certificate of service strictly in terms of section 51 of the Employment Act
  9. 9.Costs of the suit

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 41(2)(c)
  • Employment Actsection 43(2)
  • Employment Actsection 45
  • Employment Actsection 49
  • Employment Actsection 51
  • Evidence Actsection 107
  • Evidence Actsection 108
  • Evidence Actsection 109

Cases cited (14)

  • National Bank of Kenya v Samuel Nguru Mutonya
    [2019] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2014] eKLR
  • Mohamed Guyo Boru v Richard Mwilaria Aritho
    [2022] eKLR
  • Bakery Confectionery Food Manufacturing & Allied Workers Union v Wrigley Company (EA) Limited
    [2022] eKLR
  • Lawrence Nyamichaba Ondari v National Hospital Insurance Fund
    [2018] eKLR
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • Cooperative Bank of Kenya Limited v Banking Insurance & Finance Union (K)
    [2017] eKLR
  • Nampak Corrugated Wadeville v Khoza
    (JA 14/98) [1998] ZALAC 24
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Donald C. Avude v Kenya Forest Service
    [2015] eKLR
  • Luka Korir v Moi Teaching and Referral Hospital
    [2022] eKLR
  • Matindi & 2 others v Independent Electoral and Boundaries Commission & 8 others; Commission on Administrative Justice & 4 others (Interested Parties)
    (Constitutional Petition E089 of 2022) [2022] KEHC 9763 (KLR)
  • Janet Nyandiko v Kenya Commercial Bank Limited
    [2017] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kangethe v Bic East Africa Limited (Cause 772 of 2019) [2024] KEELRC 2106 (KLR)", Case Analysis (2024). Cause No 772 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2106/eng@2024-07-30

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