Abdulkarim Ali Mohamed v Coast Mail Company [2019] KEELRC 1117 (KLR)
The bottom line
#A Kenyan employer must prove both the reason for firing and that the employee got a fair hearing, or the dismissal is unlawful.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a valid reason for termination
The Claimant was unlawfully terminated; the employer failed to prove desertion as the only recall letter had no mailing address and no proof of receipt
It was common ground the Claimant was suspended after a customer complaint. The Respondent asserted desertion relying on a recall letter dated 20th May 2013, but that letter contained no mailing address and no evidence showed the Claimant received it. The Claimant was on indefinite suspension and learnt of the termination only when his advocates wrote and the Respondent replied on 4th September 2013 calling him a deserter. Without proof of a reason, termination was unfair.
Whether procedural fairness under section 41 was complied with
No hearing was accorded; the mandatory procedural requirements were flouted, rendering the termination unfair
The Claimant submitted that no hearing was conducted and no reason was advanced contrary to sections 41 and 43. The court adopted the reasoning in Mary Chemweno Kiptui v Kenya Pipeline Company Limited that section 41 is couched in mandatory terms and that termination after a flawed process without a hearing is ultimately unfair.
Entitlement to salary withheld during suspension
Claimant entitled to withheld salaries from 11th July 2012 to 2nd April 2013 as the suspension turned indefinite and he was not exculpated through any process
The suspension letter indicated one month without pay but became an indefinite suspension. Guided by Grace Gacheru Muriithi v Kenya Literature Bureau, an employee exculpated at the end of a disciplinary process has a legitimate expectation to be paid for the suspension period. As no disciplinary process concluded and the termination was concealed, the Claimant was awarded the withheld salary up to 2nd April 2013 when the Respondent said he reported back.
Compensation for unlawful termination
Eight months' salary awarded as compensation, taking into account length of service and circumstances of termination
Having found the termination unlawful, the court exercised discretion under the remedies framework to award compensation equivalent to 8 months' salary, considering the Claimant's length of service from 28th August 2008 and the circumstances under which the employment ended, namely termination without his knowledge while on suspension.
Legal principles established
#- The employer bears the burden of proving the reason for termination, failing which the termination is deemed unfair under section 45
- Section 41 procedural requirements are mandatory; termination without a hearing is unfair
Court orders
#- 1.Respondent to pay the Claimant salary for the period 11th July 2012 to 2nd April 2013 of Kshs.111,466
- 2.Respondent to pay compensation of 8 months' salary of Kshs.102,136
- 3.Total decretal sum of Kshs.213,602
- 4.Respondent to pay the Claimant's costs
- 5.The decretal sum shall attract interest at court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 35, 41, 43, 44, 45)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdulkarim Ali Mohamed v Coast Mail Company [2019] KEELRC 1117 (KLR)", Case Analysis (2019). Memorandum of Claim dated 25th March, 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1117/eng@2019-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.