Makenzi v Machakos Golf Club Ltd (Employment and Labour Relations Cause E001 of 2023) [2024] KEMC 33 (KLR)
The bottom line
#An employer with a valid reason to fire an employee still lost because it skipped fair procedure under Kenya's Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent proved a valid reason for summary dismissal (substantive fairness)
Yes - the Respondent proved the valid reason of stealing by servant, contrary to section 268 read with section 281 of the Penal Code, satisfying section 44(1) & (4)(g).
The court evaluated the Respondent's exhibits including the disciplinary minutes, the summary dismissal letter and witness statements, in the context of section 44. It found the accusation of stealing by servant - theft against the employer's property - constituted gross misconduct justifying summary dismissal. The Respondent therefore surmounted the substantive fairness test under sections 43 and 45.
Whether the summary dismissal was procedurally fair
No - the process breached section 41(2), section 45(5) and section 51, rendering the termination procedurally unfair despite the valid reason.
The court identified six procedural missteps: verbal suspension without written letter contrary to section 74; disciplinary minutes showing no representations by the Claimant; no reflection of how representations were considered; only two days' notice of the hearing; no communication of a right of appeal; and failure to issue a certificate of service. The disciplinary hearing was characterised as a sham and the Claimant was condemned unheard, breaching the mandatory section 41 and natural justice.
What reliefs flow from a finding of procedural unfairness
Damages equivalent to 10 months' pay (Kshs. 118,000), unpaid salary for 23 days of October 2020 (Kshs. 9,047), and a certificate of service; notice pay refused.
Applying section 49 and the Supreme Court's guidance in Kenfreight (E.A) Limited v Benson K. Nguti, the court exercised discretion guided by the circumstances of the dismissal, the employee's contribution to the termination, his approximately 10 years of service, modest wages and precedent. Salary was fixed at Kshs. 11,800 on the strength of the bank statement and the employer's record-keeping obligation under sections 10 and 74.
Legal principles established
#- Unfair termination involves breach of statutory law while wrongful dismissal involves breach of the employment contract.
- Fair termination requires both substantive justification (a valid reason) and procedural fairness (compliance with section 41); breach of either renders termination unfair.
- A summary dismissal under section 44 must still comply with the mandatory procedural requirements of section 41 of the Employment Act; a valid reason cannot cure a flawed process.
- An employer's failure to issue a certificate of service offends section 51 and weighs towards unfairness under section 45(5)(c).
- Remedies under section 49 of the Employment Act are discretionary, must be guided by section 49(4), and general damages are not awardable in unfair termination cases.
Court orders
#- 1.A declaration that although the Respondent was armed with a valid reason for summarily dismissing the Claimant, the procedure adopted did not conform with the mandatory provisions of the Employment Act, 2007, rendering the termination unfair.
- 2.The Respondent shall pay the Claimant damages for unfair termination equivalent to 10 months' pay, in the sum of Kshs. 118,000, with interest at Court rates from the date of Judgment until payment in full.
- 3.The Respondent shall pay the Claimant a sum of Kshs. 9,047 in unpaid salary for the 23 days of service in October 2020, with interest at Court rates from 1st November 2020 until payment in full.
- 4.The damages in (ii) and (iii) are subject to statutory deductions in accord with section 49(2) of the Employment Act, 2007.
- 5.The Respondent shall issue the Claimant with a Certificate of Service within a period of 60 days.
- 6.The Respondent shall shoulder the costs of this suit.
- Jurisdiction invoked
- Not challenged in the pleadings; the court exercises first-instance jurisdiction under the Employment Act, 2007 (parties not disputed to be employee and employer)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makenzi v Machakos Golf Club Ltd (Employment and Labour Relations Cause E001 of 2023) [2024] KEMC 33 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2024/33/eng@2024-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.