Nasiombe v Shippers Council of Eastern Africa (Cause 534 of 2019) [2024] KEELRC 2343 (KLR)
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
#Key legal issues
#Whether the termination was substantively justified
Yes - the claimant's written admission of drawing and cashing cheques without authority amounted to gross misconduct justifying summary dismissal.
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.
Whether the termination procedure was fair under Section 41 of the Employment Act
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.
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.
Allegation that letters were backdated
The letters bore erroneous dates but these were patently explainable; the actual sequence was letters drawn and received on 19th August 2016.
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.
Reliefs entitlement
Declaration of unfair termination, gratuity for period served, one month's salary compensation and certificate of service granted; notice pay declined.
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).
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.Finding that termination of employment was unfair and unlawful.
- 2.Gratuity for the period served Kshs.185,760.00.
- 3.Equivalent of one (1) month's salary Kshs.108,000.00 (Total Kshs.293,760.00).
- 4.Certificate of service.
- 5.Each party to bear their own costs.
- 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.