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ELRCAllowedCause No. 1247 of 2012

Philip Kimanzi Munyoki v YMCA [2016] KEELRC 1215 (KLR)

Employment and Labour Relations Court of Kenya
7 April 2016
1,358 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that even suspected theft does not excuse an employer from giving an employee a hearing before dismissal.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 3rd June 2011 as a Computer Tutor at the Nairobi South Branch, was summarily dismissed on 11th June 2012 following the disappearance of a computer reported missing hours after he had left work. The Claimant testified that he left all nine training computers intact, handed the computer room keys to the receptionist and was cleared by the duty guard on leaving; no investigation was conducted and the matter was not reported to police. His appeal against dismissal went unanswered. The Respondent alleged a history of gross misconduct including issuing unearned certificates and failing to receipt money, but called no witness and filed no written submissions. The court applied its prior holdings in Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Ltd and Mary Chemweno Kiptui v Kenya Pipeline Co. Ltd, holding that an employee must be heard under section 41 of the Employment Act before any termination, including summary dismissal. The Claimant's unchallenged evidence was accepted, and the court found the want of a hearing amounted to an unfair labour practice rendering the dismissal unfair under section 45(2)(a). The suit was allowed: compensation of 12 months' gross pay (Kshs.128,412.00), one month's notice pay (Kshs.10,701.00), 11 days' unpaid salary and allowances (Kshs.3,923.70) and 15 leave days (Kshs.4,115.75), with costs to the Claimant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the summary dismissal of the Claimant was wrongful and unfair for want of a hearing under section 41 of the Employment Act
  2. 2.Whether the Claimant is entitled to terminal benefits including unpaid salary and allowances, pay in lieu of notice, compensation and leave days

Key legal issues

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01

Procedural fairness in summary dismissal

Holding

The summary dismissal was unfair because the Claimant was never given a hearing as required under section 41 of the Employment Act, notwithstanding the alleged misconduct.

Reasoning

The court relied on its prior decisions in Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Ltd and Mary Chemweno Kiptui v Kenya Pipeline Co. Ltd, which emphasize that an employee must be heard before termination or summary dismissal. The Claimant responded to the account requested of him but was dismissed without a hearing, and his appeal of 22nd June 2012 went unanswered. Uncited misconduct going back over the employment, with no warning letters, did not cure the procedural defect.

p. 3
02

Unchallenged claimant evidence where respondent calls no witnesses

Holding

The Claimant's evidence stood unchallenged as the Respondent called no witness and filed no submissions.

Reasoning

The Respondent opted not to call any witness to controvert the Claimant's testimony and did not file written submissions despite both parties being given the opportunity. The court therefore found the Claimant's account - that he left the computers intact, handed over the keys and was cleared at the gate - not materially challenged, accepting it for purposes of the remedies.

p. 3
03

Remedies for unfair termination

Holding

The Claimant was entitled to compensation of 12 months' gross pay, one month's pay in lieu of notice, unpaid salary and allowances for 11 days and 15 accumulated leave days.

Reasoning

Having found the dismissal unfair for want of a hearing, the court invoked section 49 of the Employment Act to award compensation equivalent to 12 months' gross pay. Notice pay was awarded because the summary dismissal was without notice, and the claims for unpaid salary and leave days were uncontroverted and therefore awarded as pleaded.

p. 3

Legal principles established

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  • Whatever the reason for termination, an employee must be taken through the mandatory hearing process under section 41 of the Employment Act, including in cases warranting summary dismissal.
  • Failure to give an employee a hearing before summary dismissal amounts to an unfair labour practice and renders the dismissal unfair, entitling the employee to compensation under section 49 of the Employment Act.

Court orders

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  1. 1.Compensation for unfair termination awarded at 12 months gross pay of Kshs.10,701.00, totalling Kshs.128,412.00
  2. 2.One month's gross pay in lieu of notice awarded at Kshs.10,701.00
  3. 3.11 days' unpaid salary and allowances awarded at Kshs.3,923.70
  4. 4.15 accumulated leave days awarded at Kshs.4,115.75
  5. 5.Costs of the suit awarded to the Claimant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Cause jurisdiction of the ELRC)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

whatever reason or reasons that arise to cause an employer to terminate an employee, that employee must be taken through the mandatory process as outlined under section 41 of the Employment Act. These apply in a case for termination as well as in a case that warrant summary dismissal.
p. 2Mandatory hearing before termination and summary dismissal
I find the claimants evidence has not been challenged in any material way by the respondent. save for the filed defence, the Respondent opted not to call any witness to controvert what the Claimant testified to and further the Respondent did not find the need to file any written submissions.
p. 3Uncontroverted evidence where respondent calls no witness
On the finding that the Claimant was not taken through the mandatory legal procedures of a hearing before his summary dismissal, he is entitled to compensation under section 49 of the Employment Act. Such shall be awarded at 12 months gross pay of Kshs.10, 701.00 all at Kshs.128, 412.00.
p. 3Final orders - compensation for unfair termination
The unfair dismissal did not go with notice and the same is due at one (1) months gross pay all at kshs.10, 701.00. Such is awarded.
p. 3Final orders - pay in lieu of notice
11 days' pay awarded at kshs.3, 923.70; and 15 leave days awarded at kshs.4, 115.75. The Claimant is also awarded costs. Orders accordingly.
p. 3Final orders - salary, leave days and costs

Issues in the judgment

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minor

Paragraph numbering is duplicated/irregular in the judgment (two paragraphs numbered 6), and the pleaded claim sought '11 days' unpaid salary' while the court's final award refers to '15 days accumulated leave days' against the claim for leave days without specifying the figure pleaded.

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, "Philip Kimanzi Munyoki v YMCA [2016] KEELRC 1215 (KLR)", Case Analysis (2016). Cause No. 1247 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1215/eng@2016-04-07

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