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ELRCPartially AllowedEldoret ELRC Appeal (judgment does not state its own number; Appellant was Claimant in Eldoret CMELR No. 347 of 2019)· [2024] KEELRC 2746 (KLR)

Mukabwa v Ken-Knit (K) Limited (Employment and Labour Relations Appeal E009 of 2021) [2024] KEELRC 2746 (KLR)

Employment and Labour Relations Court
7 November 2024
4,858 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that even when an employee admits misconduct, firing them without proper notice of a disciplinary hearing makes the dismissal unfair.

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 Eldoret against the judgment of Hon. B.K. Kiptoo, Senior Resident Magistrate, delivered on 27th July 2021 in Eldoret CMELR No. 347 of 2019, which dismissed the Appellant's claim for wrongful, unprocedural and unlawful termination of employment. The Appellant, a machine operator employed from 24th January 2007, was issued a show cause letter dated 1st March 2018 alleging forgery of the company letterhead and directors' signatures to access NSSF benefits prematurely. He responded in writing admitting he attempted to take his NSSF payments to pay school fees. He was called for a disciplinary hearing scheduled for 29th March 2018 but did not attend; the Respondent took no further decisive action and alleged he absconded. The appeal was disposed of by written submissions. Applying Selle v Associated Motor Boat Company on the duty of a first appellate court, the court held that the Respondent had a valid reason for disciplinary action and termination, based on the Appellant's own written admission. However, the disciplinary process breached section 41 of the Employment Act: the one-day notice of the hearing was unreasonably short, and the employer failed to conclude the proceedings and communicate any decision after the Appellant's non-attendance. The abscondment defence failed for want of evidence of efforts to trace the employee. The court found the termination procedurally unfair, set aside the trial court's dismissal, and substituted a declaration of unfair termination, one month's notice pay (Kshs 13,818), one month's salary as compensation under section 49(4), and an order for a certificate of service. Claims for underpayment and pro-rata leave were declined for want of evidence. As the appeal only partially succeeded, each party bears its own costs both here and in the lower court.

Key legal issues

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01

Whether the Respondent had a valid reason to terminate the Appellant's employment

Holding

Yes - the Appellant's own written response to the show cause letter admitted the misconduct of attempting to access NSSF benefits prematurely, so the Respondent had a valid reason for disciplinary action and termination

Reasoning

Section 45 of the Employment Act requires the employer to prove the reasons for termination are valid and fair, and section 43(2) defines the reason as what the employer genuinely believed at the time. The show cause letter cited forgery of the company letterhead and directors' signatures to access NSSF money. The Appellant's reply of 6th March 2018 admitted attempting to take his NSSF payments to pay school fees, amounting to an admission of the misconduct charged. Substantive fairness was therefore established on the range of reasonable responses test.

p. 8
02

Whether the termination was procedurally fair under section 41 of the Employment Act

Holding

No - the disciplinary process was defective: the notice of the hearing was unreasonably short (one day) and the employer failed to conclude and communicate the disciplinary process after the Appellant failed to attend

Reasoning

Section 41 requires an explanation of the grounds, entitlement to accompaniment, and a hearing. The Appellant was called only on 28th March 2018 for a hearing on 29th March 2018, which the court found unreasonably short and inadequate for preparation. Further, although the Appellant confirmed attendance but did not turn up, the Respondent took no decisive action - it neither proceeded with the hearing, fixed another date, nor communicated any decision. Both requirements of procedural and substantive fairness under section 45(2) must be met; only partial procedural compliance existed, rendering the termination procedurally unfair.

p. 10
03

Whether the Appellant absconded duty

Holding

No - the defence of abscondment failed because the Respondent adduced no evidence of efforts to trace the Appellant

Reasoning

Where an employer pleads abscondment, it must give evidence of reasonable attempts to contact the employee and find out the reason for the failure to report to work, as per Simon Mbithi Mbane v Inter Security Services Ltd. The Respondent offered no such evidence, so the allegation that the Appellant absconded duty upon being issued the show cause letter did not hold water and the defence was declined.

p. 6
04

What reliefs the Appellant was entitled to

Holding

Notice pay of one month (Kshs 13,818), one month's salary as compensation for unfair termination, a declaration of unfair termination, and a certificate of service; underpayment and pro-rata leave claims were declined for want of evidence

Reasoning

Having found the termination unfair for want of procedural fairness, the court exercised its discretion under section 49(4) of the Employment Act. Considering the Appellant's over 10 years of service, but also that the Respondent had a valid reason for termination, invited the Appellant to a disciplinary hearing which he failed to attend without explanation, and only partially complied with procedure, only one month's salary was awarded as compensation. Notice pay was computed from the pay slip showing basic salary of Kshs 12,016 and house allowance of Kshs 1,802.

p. 10

Legal principles established

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  • An employer alleging that an employee absconded duty must demonstrate that reasonable efforts were made to contact the employee to ascertain the reason for absence
  • An employee facing disciplinary charges must in all situations be given adequate time to prepare for the hearing
  • An employer in control of disciplinary proceedings must bring them to a definite conclusion and communicate the decision to the employee; it cannot leave the process incomplete
  • Substantive fairness is assessed on the range of reasonable responses test - whether a reasonable employer could have decided to dismiss on those facts

Court orders

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  1. 1.A declaration that the termination of the Appellant's employment was unfair for want of procedural fairness
  2. 2.The Appellant is awarded one-month salary in lieu of notice (Kshs 13,818)
  3. 3.The Appellant is awarded 1 month's salary as compensation for unfair termination
  4. 4.The Respondent is directed to issue the Appellant with a certificate of service pursuant to section 51 of the Employment Act
  5. 5.The judgment of the trial court dismissing the Appellant's claim is set aside and substituted accordingly
  6. 6.Each party to bear its own costs of the appeal and each party to bear its own costs of the trial in the lower court

Authorities

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Legislation

  • Employment Act 2007section 41
  • Employment Act 2007section 42(1)
  • Employment Act 2007section 43(2)
  • Employment Act 2007section 45 (including 45(2), 45(4)(b), 45(5))
  • Employment Act 2007section 47(5)
  • Employment Act 2007section 49(4) and 49(4)(e)
  • Employment Act 2007section 51
  • Employment Act 2007section 10

Cases cited (11)

  • Selle & Another Vs Associated Motor Boat Company Ltd & Others
    [1968] EA 123
  • Geothermal Development Company Limited v Attorney General & 3 others
  • Godfrey Barasa Ochieng v Security Guards Services Limited
    [2022] eKLR
  • Republic v University of Nairobi Ex-Parte Lazarus Wakoli Kunani & 2 others
    [2017] eKLR
  • James Mungai Muhia v Kenya National Union of Teachers & 2 others
    [2020] eKLR (Nyeri Case No. 31 Of 2019)
  • Kenya Plantation and Agricultural Workers Union v Eastern Produce (K) Limited
    (Employment and Labour Relations Cause 22 of 2019) [2022]
  • BIFU v Barclays Bank of Kenya
    Cause 1660 of 2013 (unreported)
  • Gideon Akwera v Board of Governors Church on the Rock Academy
    [2015] eKLR
  • Simon Mbithi Mbane v Inter Security Services Ltd
    [2018] eKLR
  • Reuben Ikatwa & 17 Others v Commanding Officer British Army Training Unit Kenya & Another
    [2017] eKLR
  • Postal Corporation of Kenya v Andrew K Tanui
    [2019] eKLR
On appeal from
Chief Magistrate's Court at Eldoret (Employment and Labour Relations)
Eldoret CMELR No. 347 of 2019
Jurisdiction invoked
First appeal from the magistrates' court in an employment and labour relations matter (statutory first appellate jurisdiction; the judgment does not cite a specific provision)

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, "Mukabwa v Ken-Knit (K) Limited (Employment and Labour Relations Appeal E009 of 2021) [2024] KEELRC 2746 (KLR)", Case Analysis (2024). Eldoret ELRC Appeal (judgment does not state its own number; Appellant was Claimant in Eldoret CMELR No. 347 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2746/eng@2024-11-07

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