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ELRCPartially AllowedCause No E373 of 2023· [2024] KEELRC 2391 (KLR)

Nyongesa v Longhorn Publishers PLC (Cause E373 of 2023) [2024] KEELRC 2391 (KLR)

Employment and Labour Relations Court
30 September 2024
6,501 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, a long-serving sales employee, sued the Respondent claiming that his summary dismissal on 29th September 2022 was unfair and unlawful, and sought declarations, damages, notice pay, unpaid commissions, field and mileage allowances, relocation allowance, house allowance, severance and general damages. The Respondent defended the dismissal as substantively and procedurally justified. The Court framed two issues: whether the termination was unfair and whether the reliefs were payable. On substance, the Court held the Respondent had a valid and fair reason: the Claimant deliberately ignored the H.O.D's request for a Sales Performance Review Report for five days, amounting to insubordination under the range of reasonable responses test and Section 43(2) of the Employment Act. On procedure, however, the Court found the dismissal unfair: the Claimant was not invited to the disciplinary hearing, was given only about 24 hours to respond, faced a new charge at the hearing without prior notice, and the disciplinary committee was irregularly constituted with his H.O.D - who was also the complainant - chairing and signing the verdict contrary to the Respondent's own HR Manual. No minutes of the hearing were availed. The Court declared the termination procedurally unfair and the Claimant's right to fair hearing violated, and awarded compensation of three months' gross salary (Kshs.185,796.00) under Sections 49(1)(c) and 49(4), considering his 14 years of service but his contribution to the dismissal. All monetary claims for commissions, allowances, relocation, house allowance, severance, gratuity and general damages were declined for want of proof, limitation, or lack of legal anchorage, and each party was ordered to bear its own costs. Judgment delivered virtually at Nairobi on 30th September 2024 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Substantive justification for the dismissal

Holding

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

Reasoning

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.

p. 9
02

Procedural fairness of the dismissal

Holding

The dismissal was procedurally unfair under Section 41 of the Employment Act

Reasoning

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.

p. 11
03

Whether the move to the Western Region was a transfer or a personal swap

Holding

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

Reasoning

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.

p. 9
04

Quantum of compensation for procedural unfairness

Holding

Equivalent of 3 months' gross salary (Kshs.185,796.00) awarded under Section 49(1)(c) read with Section 49(4)

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 1.Declaration that the Claimant's right to fair hearing was violated
  2. 2.Declaration that the termination of the Claimant's employment was procedurally flawed and thus unfair
  3. 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. 4.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticles 47, 50, 159(2)(d), 48
  • Employment Act, 2007Sections 40(1), 41, 43(2), 44, 45, 49(1)(c), 49(4), 90
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (23)

  • Hosea Akunga Ombwori V Bidco Oil Refineries Ltd
    (2017) eKLR
  • Rotich V Metkei Multi-Purpose Company Ltd
    (2021) KECA
  • Kenya Union of Commercial Food & Allied Workers Union V Meru North Farmers Sacco Ltd
    (2013) eKLR
  • Postal Corporation of Kenya V Andrew K. Tanui
    (2019) eKLR
  • Alvin Obuya Odima V One Acre Fund
    (2021) eKLR
  • Alba Petroleum Ltd V Jackson Kivilu
    (2018) eKLR
  • Benjamin Mwendwa Nduati & 4 others V East African Portland Cement Company Ltd
    (2016) eKLR
  • Osire V Mega Park (K) Ltd
    (2023) KEELRC 1504
  • Lilian Muchungi V Green Belt Movement
    (2022) eKLR
  • Kiilu V Isinya Resorts Ltd
    (2022) KEELRC 13240 (KLR)
  • Gichuru V Package Insurance Brokers Ltd
    (2021) KESC 12 KLR
  • Yeager V R.J Hastings Ltd
    (185) WWR 2018
  • Kenya Engineering Workers Union V Eldoret Steel Mills Ltd
    (2003) eKLR
  • Palluci Home Depot (PTY) Ltd V Herskowitz & others
    (2014) ZALAC 81
  • Christopher Komen Chebet V Brinks Security Services Ltd
    (2019) eKLR
  • Anthony Mkala Chitavi V Malindi Water & Sewerage Company Ltd
  • Regent Management Ltd V Wilberforce Ojiambo Oundo
    (2018) eKLR
  • Naima Khamis V Oxford University Press (EA) Ltd
    (2017) eKLR
  • Kenya Revenue Authority V Reuwel Waithaka Gitahi & 2 others
    (2019) eKLR
  • Galgalo Jarso Jillo V Agricultural Finance Corporation
    (2021) eKLR
  • British Leyland (UK) Ltd V Swift
    (1981) I.R.L.R 91
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • D.K. Njagi Marete V Teachers Service Commission
    (2020) eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act, 2007 over the unfair termination claim

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, "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.