Anne Wino Misumi Gumbi v Youth Enterprise Development Fund Board [2018] KEELRC 38 (KLR)
The bottom line
#A Kenyan court awarded an employee over Kshs.1 million because her employer fired her without giving her a fair disciplinary hearing first.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether termination of the employment of claimant wrongful, unfair and unlawful?
- 2.Whether the claimant entitled to the relief sought?
- 3.Who bears the costs of the claim?
Key legal issues
#Whether termination was wrongful, unfair and unlawful
The termination was unlawful because the respondent failed to afford the claimant a disciplinary hearing as required by section 41 of the Employment Act, 2007 and its own Human Resource Manual
The court found that the respondent adduced no evidence of having walked the claimant through a disciplinary hearing. Sections 41, 42, 43, 44 and 45 of the Employment Act, 2007 define lawful and unlawful termination, and a critical ingredient is appropriate disciplinary proceedings guaranteeing a fair hearing. The respondent failed to observe both the statute and its own Human Resource Manual, which mandates show cause letters and hearing steps, so its case failed irrespective of the misconduct alleged.
Whether the claimant is entitled to the relief sought
Having won on unlawful termination, the claimant became entitled to relief: one month's salary in lieu of notice, leave allowance for 11 days, and six months' salary as compensation for unlawful termination
The court held that success on the unlawful termination claim entitled the claimant to relief. It awarded one month's salary in lieu of notice instead of the three months claimed, the claimed leave allowance for 11 untaken leave days, and six months' salary as compensation for unlawful termination, totalling Kshs.1,043,273.00, with costs to the respondent.
Legal principles established
#- A fair hearing in a disciplinary process is a necessary ingredient in any summary dismissal or termination of employment
- The law mandates fairness in the process of termination regardless of the gravity of the employee's alleged misconduct
Court orders
#- 1.One (1) month's salary in lieu of notice of Kshs.141,527.00
- 2.Leave allowance for 11 days untaken leave of Kshs.52,584.00
- 3.Six (6) months' salary as compensation for unlawful termination of employment, Kshs.849,162.00
- 4.Total award of Kshs.1,043,273.00
- 5.The costs of the claim shall be borne by the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court of Kenya over a claim for unlawful termination of employment
Relief refused
#Reinstatement to employment without loss of benefits
The court instead awarded compensation in lieu, granting only one month's salary in lieu of notice rather than the three months claimed
Three months' salary in lieu of notice
The court awarded only one month's salary in lieu of notice
General and exemplary damages for unlawful termination
Not awarded; the court instead granted six months' salary as compensation under the Employment Act framework
Costs
The costs of the claim shall be borne by the respondent.
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.
I therefore find a case of unlawful termination of the employment of the claimant by the respondent and hold as such.
However helpless an employee’s case or conduct may appear, the law mandates fairness in the process of termination or dismissal.
The respondent’s case is a display of gaping holes in the observation of the law and process as set out.
The costs of the claim shall be borne by the respondent.
Total of claim………………………………………………….Kshs.1,043,273.00
Issues in the judgment
#The signature/delivery clause is internally inconsistent and incomplete, stating 'Dated and signed this day of 2018' but then 'Delivered and signed this 20th day of December, 2018' before Maureen Onyango, Principal Judge
The coram lists D. K. N. Marete but the signature block reads 'D.K. Njagi Marete JUDGE', a slight variance in the judge's name
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anne Wino Misumi Gumbi v Youth Enterprise Development Fund Board [2018] KEELRC 38 (KLR)", Case Analysis (2018). Cause No. 2050 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/38/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.