Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 534 of 2019· [2024] KEELRC 2343 (KLR)

Nasiombe v Shippers Council of Eastern Africa (Cause 534 of 2019) [2024] KEELRC 2343 (KLR)

Employment and Labour Relations Court
30 September 2024
3,799 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled an employee's firing was procedurally unfair because he was never given a fair hearing, even though his misconduct was proven.

What this practically means

#

Executive summary

#
The Claimant, formerly Project Accountant and Monitoring and Evaluation Officer of the Respondent, sued for wrongful termination of employment effective 19th August 2016, alleging backdating of letters, absence of notice, no hearing and non-issue of a certificate of service. He sought a declaration of unfair termination, 12 months' compensation, gratuity, one month's notice pay, certificate of service, costs and interest. The Respondent's Reply was unavailable on the Case Tracking System, and its counterclaim was withdrawn in December 2022. RWI testified the termination followed the Respondent's manual after fraud and theft, though no internal guilt finding preceded dismissal. The court framed two issues: whether the termination was unfair and unlawful, and the reliefs. It found that the letters' apparently inconsistent dates were typographical errors, not backdating. On substance, the Claimant's written admission that he drew and cashed cheques without authorization, without vouchers or cheque register entries, amounted to gross misconduct, giving the Respondent valid reason under Section 43(2) of the Employment Act. However, the CEO's query, the Claimant's response and the termination letter were all written and served on the same day, breaching the mandatory Section 41 requirements of explanation and hearing; the termination was thus procedurally unfair. Relief was apportioned: the declaration was granted, gratuity at 8% for the period served (Kshs.185,760.00), one month's compensation (Kshs.108,000.00) and a certificate of service were awarded, while notice pay was declined as summary dismissal under Section 44(1) applied. Each party bore its own costs.

Key legal issues

#
01

Whether the termination was substantively justified

Holding

Yes - the claimant's written admission of drawing and cashing cheques without authority amounted to gross misconduct justifying summary dismissal.

Reasoning

The court found the claimant admitted in writing that he drew cheques without official authorization, raised no payment vouchers and did not enter them in the cheque register. Under Section 43(2), the employer's genuine belief at termination suffices. Clause 3.2 of the HR Manual identified gross misconduct as grounds for summary dismissal, so the Respondent was not obliged to seek other grounds.

p. 7
02

Whether the termination procedure was fair under Section 41 of the Employment Act

Holding

No - the procedure was fatally flawed because the claimant was not summoned to a meeting or given notice to show cause with an opportunity to be accompanied.

Reasoning

All three letters - the CEO's query, the claimant's response and the termination letter - were written and served on the same day, 19th August 2016. Section 41 is mandatory and requires explanation of grounds, hearing and presence of a representative. The absence of a show-cause meeting rendered the termination procedurally unfair despite valid reason.

p. 1
03

Allegation that letters were backdated

Holding

The letters bore erroneous dates but these were patently explainable; the actual sequence was letters drawn and received on 19th August 2016.

Reasoning

The court analysed the dates of the CEO's letter, the claimant's response and the termination letter. It found the typed dates were typos - decipherable from handwritten acknowledgments and internal references - and rejected the backdating allegation as unproven.

p. 6
04

Reliefs entitlement

Holding

Declaration of unfair termination, gratuity for period served, one month's salary compensation and certificate of service granted; notice pay declined.

Reasoning

Having found procedural unfairness but substantive justification, the court granted the declaration, gratuity at 8% for 21½ months, one month's compensation under Section 49(1)(c) factoring the claimant's contribution to his dismissal, and a certificate of service under Section 51, but declined notice pay under Section 44(1).

p. 9

Legal principles established

#
  • For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness.
  • Section 41 of the Employment Act is mandatory and its non-compliance renders a termination procedurally unfair, even where the reason is valid.
  • Under Section 43(2) of the Employment Act, the reasons for termination are the matters the employer genuinely believed to exist at the time of termination.

Court orders

#
  1. 1.Finding that termination of employment was unfair and unlawful.
  2. 2.Gratuity for the period served Kshs.185,760.00.
  3. 3.Equivalent of one (1) month's salary Kshs.108,000.00 (Total Kshs.293,760.00).
  4. 4.Certificate of service.
  5. 5.Each party to bear their own costs.

Authorities

#

Legislation

  • Employment ActSection 43(2)
  • Employment ActSection 41
  • Employment ActSection 44(1)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 51
  • Penal CodeSection 281
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (4)

  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    (2017) eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui
    2019 eKLR
Jurisdiction invoked
Article 162(2) of the Constitution (ELRC jurisdiction) - Employment Act, Sections 41, 43, 44(1), 49(1)(c), 51

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nasiombe v Shippers Council of Eastern Africa (Cause 534 of 2019) [2024] KEELRC 2343 (KLR)", Case Analysis (2024). Cause No 534 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2343/eng@2024-09-30

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