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ELRCPartially AllowedMombasa Cause No. 244 of 2020 (Appeal)· [2024] KEELRC 2458 (KLR)

Igunza v Badar Hardware Limited (Employment and Labour Relations Appeal E073 of 2021) [2024] KEELRC 2458 (KLR)

Employment and Labour Relations Court
11 October 2024
MMM. Mbarũ
2,402 words in judgment
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The bottom line

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A Kenyan court ruled a truck driver's dismissal unfair because his employer skipped the mandatory disciplinary process, awarding him notice pay and compensation despite proven misconduct.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Mombasa (M. Mbarũ, J) against the judgment of 29 September 2021 in Mombasa Cause No. 244 of 2020, which dismissed a truck driver's claim for unfair termination. The appellant was employed as a truck driver and, while on annual leave from 15 January 2020, learned on his resumption date of 8 February 2020 that his employment had ended; the respondent alleged he was summarily dismissed on 10 February 2020 for diverting from an approved route and carrying unauthorised passengers and for failing to attend a disciplinary hearing. The appellant's certificate of service recorded resignation with effect from 7 February 2020. The court found that the notice dated 15 January 2020 was a compulsory leave notice under Section 28 and did not satisfy the mandatory requirements of Section 41 of the Employment Act; and that the certificate of service contained false particulars (date of separation and alleged resignation) attracting Section 51(4). Relying on Five Forty Aviation, Oyombe, Power Group Technologies and Kenya Revenue Authority v Waithaka, the court held the termination procedurally unfair despite a valid reason. The appeal was partially allowed: a declaration of unlawful and unfair termination, notice pay of Ksh.35,000 and compensation of Ksh.105,000 (three months' salary) were awarded, the respondent was ordered to issue a correct certificate of service, the appellant received 50% costs of the appeal, and each party was to bear its own costs in the trial court. Claims for January salary and service pay failed as paid and covered by statutory remittances respectively.

Key legal issues

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01

Compliance with Section 41 of the Employment Act

Holding

The notice dated 15 January 2020 did not meet the Section 41 threshold; the respondent did not comply with the mandatory procedural requirements, rendering the termination unfair.

Reasoning

The leave form and notice of compulsory leave are governed by Section 28, whereas notice of a disciplinary hearing is governed by Section 41. The notice dated 15 January 2020 was never received by the appellant and did not explain the reasons or offer the right to be accompanied. Even assuming it was issued, the respondent failed to prove the mandatory Section 41 notice, so termination without due process was unfair.

p. 4
02

Disparities in the certificate of service

Holding

The certificate of service falsely recorded the date of separation as 7 February 2020 and the reason as resignation, conflicting with the respondent's case of summary dismissal on 10 February 2020.

Reasoning

The certificate of service is issued under Section 51 of the Employment Act and must state when employment commenced and ceased. The record showed leave was to run to 7 February with resumption on 8 February, yet the certificate recorded cessation on 7 February and resignation, while the respondent claimed gross misconduct and summary dismissal. No resignation letter exists. Such false statements attract liability under Section 51(4).

p. 5
03

Remedies: notice pay and compensation

Holding

Notice pay of Ksh.35,000 was justified; compensation assessed at three months' salary (Ksh.105,000) given the appellant's proven gross misconduct notwithstanding the procedural breach.

Reasoning

Where there is no due process, the employee is entitled to notice pay and compensation. However, the appellant did not contest that he diverted from the approved voyage plan, drove about 10 kilometres off-route and carried unauthorised passengers, breaching safety policy. The court therefore weighed the respondent's violations of Sections 41 and 51(4) against the proven misconduct and awarded three months' compensation.

p. 5

Legal principles established

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  • Before terminating employment on grounds of misconduct, the employer must comply with the mandatory provisions of Section 41 of the Employment Act by explaining the reasons and allowing the employee representation.
  • An employer who alleges the employee failed to attend a disciplinary hearing must first prove that notice under Section 41 was issued; failing that is an unfair labour practice.
  • Even where there is a valid reason for termination, termination without due process is unfair and entitles the employee to notice pay and compensation.
  • An employer who includes a knowingly false statement in a certificate of service commits an offence under Section 51(4) of the Employment Act.

Court orders

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  1. 1.A declaration that employment was terminated unlawfully and unfairly
  2. 2.Compensation awarded at Ksh.105,000
  3. 3.Notice pay Ksh.35,000
  4. 4.50% costs of the Appeal; for the trial court, each party bears its own costs
  5. 5.The respondent to issue the appellant with a correct Certificate of Service

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 44
  • Employment ActSection 45
  • Employment ActSection 42(1)
  • Employment ActSection 28
  • Employment ActSection 35(6)
  • Employment ActSection 51 and 51(4)

Cases cited (8)

  • Wanyera v Central Isiolo Investment Limited
    Appeal E002 of 2023
  • George Musabali v G4S Security Services Limited
    [2016] eKLR
  • Mary Kitsao Ngowa & 36 others v Krystalline Limited
    [2015] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Five Forty Aviation Limited v Erwan Lanoe
    [2019] eKLR
  • Oyombe v Eco Bank Limited
    [2022] KECA 540 (KLR)
  • Power Group Technologies Ltd v Kibugi
    [2021] KECA 62 (KLR)
  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
On appeal from
Employment and Labour Relations Court (trial court), Mombasa
Mombasa Cause No. 244 of 2020
Jurisdiction invoked
First appeal from the trial court's judgment (appellate jurisdiction of the Employment and Labour Relations Court)

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, "Igunza v Badar Hardware Limited (Employment and Labour Relations Appeal E073 of 2021) [2024] KEELRC 2458 (KLR)", Case Analysis (2024). Mombasa Cause No. 244 of 2020 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2458/eng@2024-10-11

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