Nyongesa v Longhorn Publishers PLC (Cause E373 of 2023) [2024] KEELRC 2391 (KLR)
The bottom line
#A Kenyan court ruled the dismissal procedurally unfair despite a valid reason, awarding only three months' salary because documentation failures doomed every other claim.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for the dismissal
The Respondent had a valid and fair reason - the Claimant's deliberate five-day ignoring of the H.O.D's request amounted to insubordination
The notice to show cause was clear and the Claimant's response showed he understood the charge. He received the H.O.D's email of 15th September 2022 and made no effort to respond until prompted by the notice to show cause five days later. Applying the standard in Section 43(2) of the Employment Act and the range of reasonable responses test, the Court found the non-response wilful, so the employer genuinely believed and proved a valid reason.
Procedural fairness of the dismissal
The dismissal was procedurally unfair under Section 41 of the Employment Act
The Claimant was not invited to the disciplinary hearing; the second charge was sprung on him at the meeting; he had only about 24 hours to respond to the notice to show cause; the disciplinary committee was irregularly constituted with the Claimant's H.O.D - also the complainant - chairing it contrary to the HR Manual; and no minutes of the hearing were availed. The absence of an invitation and notification of rights denied the Claimant a fair hearing.
Whether the move to the Western Region was a transfer or a personal swap
It was a personal swap initiated by the Claimant and a colleague, not an employer's transfer, so the 14 days off-duty and transfer allowance did not apply
The H.O.D's email of 29th August 2022 merely confirmed an exchange between the Claimant and Abednego for personal reasons. Transfers are the employer's prerogative and normally evidenced by a letter of transfer, which was absent. The employer could legitimately treat the accommodation of a personal request differently from an ordinary transfer.
Quantum of compensation for procedural unfairness
Equivalent of 3 months' gross salary (Kshs.185,796.00) awarded under Section 49(1)(c) read with Section 49(4)
The Court considered the Claimant's 14 years of service, clean disciplinary record, the appeal lodged, but also that he substantially contributed to his termination by ignoring the H.O.D's request. Those factors justified 3 months' gross salary as fair compensation rather than the 12 months sought.
Legal principles established
#- Unfair termination requires both substantive justification and procedural fairness
- An employee ought not be dismissed on a charge whose particulars were not put to him for a response
- An employer-initiated transfer and an employee's personal request to change work station may be treated differently
- A hearing not conducted in conformity with Section 41 of the Employment Act is irregular
Court orders
#- 1.Declaration that the Claimant's right to fair hearing was violated
- 2.Declaration that the termination of the Claimant's employment was procedurally flawed and thus unfair
- 3.Compensation equivalent of 3 months' gross salary of Kshs.185,796.00 under Section 49(1)(c) read with Section 49(4) of the Employment Act
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007 over the unfair termination claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyongesa v Longhorn Publishers PLC (Cause E373 of 2023) [2024] KEELRC 2391 (KLR)", Case Analysis (2024). Cause No E373 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2391/eng@2024-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.