Alex Kihonge Mukoma v Tropical Farm Management Kenya Ltd [2012] KEELRC 127 (KLR)
The bottom line
#A Kenyan court found a farm manager's dismissal unfair and awarded him nearly Kshs 1 million because the employer never gave him a hearing or proved the misconduct.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the Claimant's employment was in compliance with the Employment Act (procedural fairness under sections 35, 36 and 41)
- 2.Whether the Respondent proved valid and fair reasons for termination under sections 43 and 45 of the Employment Act (substantive fairness)
- 3.If the termination was unfair, what the appropriate remedies are
Key legal issues
#Procedural fairness of the termination
The termination was procedurally unfair because the Respondent did not notify the Claimant or hear his representations before the decision to terminate, as required by section 41 of the Employment Act.
Section 41 imposes a statutory obligation on employers to notify and hear an employee's representations before termination where the grounds relate to misconduct, poor performance or incapacity. The termination letter showed the dismissal was for alleged misconduct. No evidence suggested the Claimant was notified or heard before the decision. The Respondent's practice of preparing the termination letter first and inviting the employee to review it falls far short of section 41. Warning letters from 2003, 2004 and 2009 were of historical relevance only.
Substantive fairness of the termination
The termination was substantively unfair because the Respondent failed to discharge its burden under sections 43 and 45 to prove valid and fair reasons for termination.
Section 43 places a duty on the employer to prove the reasons for termination, and section 45 requires proof that those reasons are valid and fair. The Respondent's witness gave only vague reasons - that the Claimant could not work with the Respondent and his conduct warranted disciplinary action - without details or particulars, such as who was insulted or abused. No witnesses were called to substantiate misconduct, and the Claimant had earned bonuses in recognition of his contribution. The threshold requirements of sections 43 and 45 were therefore not met.
Appropriate remedies for unfair termination
The Claimant was awarded three months' pay in lieu of notice (Kshs 188,100/-) and the maximum twelve months' gross pay in damages (Kshs 800,400/-) under section 49(1)(c), considering his age, length of service and prospects of alternative employment; severance, retirement salary and bonus claims were declined.
Having found the termination both procedurally and substantively unfair, the court awarded notice pay despite the summary dismissal route. Under section 49(1)(c), the court exercised its discretion to award the maximum twelve months' gross salary, weighing the Claimant's age, possibility of securing alternative employment and length of service. Severance pay failed for want of a pleaded redundancy; the retirement salary claim had no contractual or statutory basis; and the bonus claim was unproven.
Legal principles established
#- The statutory obligation to notify and hear an employee under section 41 of the Employment Act applies even in cases of summary dismissal, and preparing a termination letter first falls short of this requirement
- An employer bears the statutory duty to prove valid and fair reasons for termination, and vague allegations without details and particulars do not discharge that burden
- An award of damages under section 49(1)(c) of the Employment Act is discretionary and not automatic, and must be exercised judicially having regard to the section 49(4) factors
Court orders
#- 1.Award of three months' pay in lieu of notice of Kshs 188,100/-
- 2.Award of twelve months gross pay in damages of Kshs 800,400/-
- 3.Total award of Kshs 988,500/- less any statutory or lawful deductions
- 4.No order as to costs
- 5.Certificate of service to be issued to the Claimant after he clears with the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Industrial Court of Kenya jurisdiction over employment and labour relations disputes (Cause filed under the Industrial Court's first-instance jurisdiction)
Relief refused
#Severance pay of Kshs 900,450/-
Redundancy was not pleaded and the Claimant failed to establish that he was declared redundant
Salary for the 13 years remaining to retirement (Kshs 10,405,200/-)
No contractual or common law basis laid, and the discretionary award was limited to twelve months' gross pay under section 49(1)(c)
Unpaid crop bonus for 2010
The Claimant did not establish that the bonus, which was to be paid with December 2010 salary, was not paid
Costs
There will be no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The statutory obligation to notify and hear any representations made by an employee applies even in cases of summary dismissal.
I am afraid that the Respondent has failed to meet the threshold requirements of sections 43 and 45 of the Employment Act and I therefore do find that the termination of the Claimant was substantively unfair.
But I must state that an award under section 49(1) (c) of the Employment Act is discretionary and not automatic and like all judicial discretions must not be exercised arbitrarily or capriciously.
parties need to set and clarify to the Court whether their claims or causes of action are based on the common law breach of contract or statute, because,it has a legal impact on the type of remedies the Court can grant.
In the final analysis the Claimants succeeds to the extent indicated in the discussion above and I do find that the termination of his services was both procedurally and substantively unfair
There will be no order as to costs.
Issues in the judgment
#The judgment is dated and signed in Mombasa with a blank day and month ('Dated and signed in Mombasa on this day of December 2012') but delivered and signed in open Court in Nairobi on 14 December 2012, leaving the signing date incomplete and the delivery venue inconsistent.
The letter of termination cited section 44(d) of the Employment Act, which the court presumed was a reference to section 44(4)(d).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alex Kihonge Mukoma v Tropical Farm Management Kenya Ltd [2012] KEELRC 127 (KLR)", Case Analysis (2012). Cause 653 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/127/eng@2012-12-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.