Kudheiha Workers v Kenya Railways Golf Club [2018] KEELRC 575 (KLR)
The bottom line
#A Kenyan court ruled an employee's dismissal unfair because the employer gave no hearing and couldn't prove misconduct, awarding six months' salary plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the grievant on 31.7.2009 was unfair
The dismissal was both substantively and procedurally unfair: the respondent failed to prove the alleged gross misconduct and admitted that no show cause letter was issued and no hearing accorded.
The respondent alleged the grievant fraudulently paid himself Kshs.25,000 and kept floating cheques. The cheque was signed by the respondent's own authorised signatories who did not testify, and the floating cheques were never produced as exhibits. Rw1 admitted under oath that the claimant was neither served with a show cause letter nor accorded any hearing, contrary to section 41 of the Employment Act. Following Mary Chemweno Kiptui v Kenya Pipeline Company Limited, failure to follow the mandatory hearing provisions renders the termination unfair.
Whether the claimant is entitled to compensation for unfair termination
Yes; compensation of Kshs.150,000, being 6 months' gross salary, was awarded under sections 49 and 50 of the Employment Act, in addition to the pre-trial settlement sums.
Having found the dismissal procedurally and substantively unfair, the court invoked section 49(1)(b) of the Employment Act which permits compensation equivalent of salary not exceeding 12 months. In fixing the award at 6 months, the court considered the length of the grievant's service (April 2007 to July 2009) and the fact that he did not contribute to the dismissal through any proven misconduct.
Legal principles established
#- Termination of employment is unfair where the employer fails to prove both a valid and fair reason and a fair procedure, including a hearing under section 41 of the Employment Act.
- The employer bears the burden of proving the reasons for dismissal on a balance of probability under section 43 of the Employment Act.
Court orders
#- 1.Final judgment entered for the claimant against the respondent: payment of net Kshs.150,000, being compensation of 6 months' gross salary, in addition to the pre-trial settlement amount (3 months' leave notice Kshs.75,000 and service gratuity Kshs.25,000, total 18,333 omitted in the award schedule as already paid of Kshs.118,333)
- 2.Costs of the suit awarded to the claimant
- 3.Interest on the sum awarded at court rates from the date of judgment
- 4.The sum awarded is subject to statutory deductions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (termination of employment, unfair termination claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kudheiha Workers v Kenya Railways Golf Club [2018] KEELRC 575 (KLR)", Case Analysis (2018). Not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/575/eng@2018-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.