Abdul Yusuf v Mawingo Construction 2010 Ltd [2018] KEELRC 2030 (KLR)
The bottom line
#A Kenyan court ruled that even employees accused of theft must get a fair hearing before dismissal, or the dismissal is unlawful.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal was lawful and fair
The dismissal was substantively and procedurally unfair; there was no evidence of the Section 41 fair-hearing process despite dismissal on grounds of gross misconduct.
The claimant pleaded redundancy but the evidence showed summary dismissal on gross misconduct allegations. Citing Mary Chemweno Kiptui v Kenya Pipeline Company Ltd, the court held that the right to summarily dismiss does not displace the Section 41 fair hearing. No such process was evident, so the dismissal was substantively and procedurally unfair.
Whether the claimant was on probation (removing Section 41 protection)
The claimant was not on probation, as Section 2 requires a probationary contract to be in writing and the respondent proved none.
The respondent argued the claimant was on probation at termination, which under Section 42 would exclude Section 41 protections. Since Section 2 requires probationary contracts to be in writing and no written contract was produced, the plea failed.
The claimant's correct monthly salary
The court adopted the claimant's pleaded salary of Kshs. 51,293 under Section 10(7) because the respondent failed to produce contrary records.
The respondent alleged the July 2016 payslip was a forgery but, as custodian of employee records, failed to produce the correct payslip. Section 10(7) then permits the court to adopt the employee's evidence on salary, which the court did.
Entitlement to remedies
The claimant was awarded 3 months' salary in compensation and one month's notice pay; the July 2016 salary claim was dismissed.
Given the unfair dismissal, the court awarded three months' salary in compensation and one month's salary in lieu of notice, plus a certificate of service and costs. The July salary claim failed on the claimant's own payslip showing receipt.
Legal principles established
#- An employer's right to summarily dismiss an employee does not derogate from the employee's right to fair hearing under Section 41 of the Employment Act; proof of grounds under Section 44 requires compliance with Section 41 procedural fairness.
- Where the employer, as custodian of employment records, fails to produce the correct records, the court may adopt the employee's evidence on salary under Section 10(7) of the Employment Act.
- A probationary contract must be in writing under Section 2 of the Employment Act; absent written proof, the employee is not on probation and retains Section 41 procedural protection.
Court orders
#- 1.Judgment entered in favour of the Claimant: 3 months' salary in compensation of Kshs. 153,879
- 2.1 month's salary in lieu of notice of Kshs. 51,293 (total Kshs. 205,172)
- 3.Interest at court rates from the date of judgment until payment in full
- 4.Certificate of service to be issued to the Claimant
- 5.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; claim for unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdul Yusuf v Mawingo Construction 2010 Ltd [2018] KEELRC 2030 (KLR)", Case Analysis (2018). Not stated in the judgment (Memorandum of Claim dated 17th October 2016, filed 28th October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2030/eng@2018-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.