Mukabwa v Ken-Knit (K) Limited (Employment and Labour Relations Appeal E009 of 2021) [2024] KEELRC 2746 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Respondent had a valid reason to terminate the Appellant's employment
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
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.
Whether the termination was procedurally fair under section 41 of the Employment Act
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
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.
Whether the Appellant absconded duty
No - the defence of abscondment failed because the Respondent adduced no evidence of efforts to trace the Appellant
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.
What reliefs the Appellant was entitled to
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
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.
Legal principles established
#- 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
#- 1.A declaration that the termination of the Appellant's employment was unfair for want of procedural fairness
- 2.The Appellant is awarded one-month salary in lieu of notice (Kshs 13,818)
- 3.The Appellant is awarded 1 month's salary as compensation for unfair termination
- 4.The Respondent is directed to issue the Appellant with a certificate of service pursuant to section 51 of the Employment Act
- 5.The judgment of the trial court dismissing the Appellant's claim is set aside and substituted accordingly
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.