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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim dated 23/1/2020, filed 6/2/2020)

Mutuku v Total Kenya PLC (Cause 7 of 2020) [2024] KEELRC 2150 (KLR)

Employment and Labour Relations Court
31 July 2024
4,725 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled Total Kenya unfairly fired an engineer, ordering it to pay Kshs 3,096,640 because the employee never got a proper hearing.

What this practically means

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Executive summary

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The Claimant, formerly a Terminal Engineer employed by Gapco Kenya Limited and transferred to the Respondent (Total Kenya PLC) upon acquisition in 2017, was terminated on 20/5/2019 on grounds of misconduct arising from allegations that he received money from a re-seller customer, Peter Kipyegon Cheruiyot. The Claimant sued for a declaration of unfair termination, 12 months' salary as compensation, a certificate of service, costs and interest. The Respondent maintained that the Claimant received a fair hearing through a meeting of 16/1/2019, a show cause letter, and his written responses. The court framed two issues: whether the termination was unfair, and whether the reliefs sought were deserved. On procedural fairness, the court held that the 16/1/2019 meeting preceded disclosure of the charges and did not satisfy the mandatory requirements of Section 41 of the Employment Act; the Claimant was never notified of his right to be accompanied, and no oral hearing followed his written response to the show cause letter. On substantive fairness, the alleged conflict of interest was not demonstrated: Cheruiyot testified for the Claimant that their dealings were personal purchases of farm produce, and that evidence was unrebutted. The court declared the termination substantively and procedurally unfair, awarded compensation of ten months' gross salary (Kshs 3,096,640) subject to statutory deductions, ordered issuance of a certificate of service within thirty days, and awarded the Claimant costs plus interest at court rates from the date of judgment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether termination of the Claimant's employment by the Respondent was unfair
  2. 2.whether the reliefs sought by the Claimant are deserved

Key legal issues

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01

Procedural fairness of the termination

Holding

Termination was procedurally unfair: the 16/1/2019 meeting preceded disclosure of charges, the Claimant was not notified of his right to be accompanied, and he was never accorded an oral hearing after responding to the show cause letter

Reasoning

Section 41 of the Employment Act is mandatory. It requires the employer to explain reasons for contemplated termination in the presence of a companion chosen by the employee, and to hear representations before termination. The 16/1/2019 meeting was an ambush, coming before the charges were disclosed. The termination letter shows the Respondent acted merely on written responses to the show cause letter and emails, with no oral hearing thereafter.

p. 7
02

Substantive fairness - validity of the reason for termination

Holding

The Respondent failed to demonstrate a valid reason under Section 45(2)(a); no conflict of interest was established

Reasoning

Peter Kipyegon Cheruiyot, the person from whom the Claimant allegedly received money, corroborated the Claimant's account that their dealings were personal purchases of farm produce. His evidence was not rebutted by counter-evidence or in cross-examination. The Claimant, a Terminal Engineer, did not deal with re-sell customers, and it was not shown his personal dealings could influence or appear to influence his work.

p. 9
03

Reliefs deserved

Holding

Compensation of ten months' gross salary (Kshs 3,096,640) awarded, subject to statutory deductions; certificate of service ordered; costs and interest granted

Reasoning

Having found the termination both procedurally and substantively unfair, the court exercised its discretion under Section 49 of the Employment Act, considering the manner and circumstances in which the termination was effected, and awarded ten months' gross salary of Kshs 309,664. A certificate of service is a statutory entitlement under Section 51(1).

p. 9

Legal principles established

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  • Termination without prior disclosure of accusations and without an oral hearing breaches Section 41 of the Employment Act and is procedurally unfair
  • Holding a meeting with an employee before disclosing the charges against him does not satisfy Section 41; the mandatory hearing must follow disclosure of the charges
  • Section 41 requires an oral and physical hearing where the employee may be accompanied by a fellow employee or union representative

Court orders

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  1. 1.Declaration that termination of the Claimant's employment was substantively and procedurally unfair
  2. 2.Judgment entered for the Claimant against the Respondent for Kshs 3,096,640 being compensation for unfair termination (equivalent of 10 months' salary)
  3. 3.The awarded sum shall be subject to statutory deductions pursuant to Section 49(2) of the Employment Act
  4. 4.The Respondent shall issue the Claimant with a Certificate of Service pursuant to Section 51(1) of the Employment Act within thirty days of the judgment
  5. 5.The Claimant is awarded costs of the suit, plus interest on the awarded sum at Court rates from the date of the judgment

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Employment Act, 2007 (Sections 41, 45, 49, 51(2)) - first-instance employment claim

Relief refused

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Compensation of 12 months' salary (Kshs 4,081,968) as sought

The court awarded 10 months' salary instead, taking into account the manner and circumstances of the termination

p. 9

Costs

The Claimant is awarded costs of the suit, plus interest on the awarded sum, calculated at Court rates from the date of this judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

There cannot be a fair hearing without prior disclosure of accusations. Anything in the contrary is against the principles of natural justice.
p. 7Natural justice in disciplinary process
Subjecting an employee to “a hearing” before disclosure of the allegations against him and then raising a formal charge against him is unfair.
p. 8Sequencing of charges and hearing under Section 41
I find and hold that termination of the Claimant’s employment was substantively and procedurally unfair, and I so declare.
p. 9Declaration of unfair termination
judgment is hereby entered for the Claimant against the Respondent for Kshs 3,096,640 being compensation for unfair termination of employment.
p. 9Final orders - compensation
The Respondent shall issue the Claimant with a Certificate of Service pursuant to Section 51(1) of the Employment Act within thirty days of this judgment.
p. 9Final orders - certificate of service
The Claimant is awarded costs of the suit, plus interest on the awarded sum. Interest shall be calculated at Court rates from the date of this judgment.
p. 9Final orders - costs and interest

Issues in the judgment

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minor

Judgment internally dates the termination letter inconsistently: paragraph 30 refers to a termination letter dated 20/5/2024 while all other references are to 20/5/2019

minor

RW1 is recorded as stating the meeting regarding complaints was held on 16/1/2016, which conflicts with the rest of the judgment dating the meeting to 16/1/2019

minor

Judgment recites quotations and a statutory provision containing OCR-style errors (e.g. 'confiict', 'efiected', 'shop fioor')

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, "Mutuku v Total Kenya PLC (Cause 7 of 2020) [2024] KEELRC 2150 (KLR)", Case Analysis (2024). Not stated in judgment (Memorandum of Claim dated 23/1/2020, filed 6/2/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2150/eng@2024-07-31

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