Kennedy Moss Cheptum v Geothermal Development Company [2019] KEELRC 1454 (KLR)
The bottom line
#A Kenyan employer with a valid reason to fire an employee still lost the case because it skipped the mandatory hearing before dismissal.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was substantively fair
The Respondent proved a valid reason for dismissal - the Claimant's persistent unexplained absenteeism.
The dismissal letter cited prior show cause letters and a supervisor's report of absence from 30th December 2013 to 2nd January 2014 without explanation. Biometric clocking-in records attached to the Respondent's pleadings showed attendance lapses which were not rebutted, and the Claimant's own apology letter of 13th September 2013 corroborated prior absenteeism. The court thus found sufficient reason for summary dismissal under section 44(4)(a) and (g) of the Employment Act.
Whether the summary dismissal was procedurally fair
The dismissal was procedurally unfair because the Claimant was not accorded a hearing before termination.
Section 41 of the Employment Act obliges an employer, before terminating or summarily dismissing an employee on grounds of misconduct, to explain the reasons and hear the employee's representations, including those of a chosen companion. Relying on Mary Chemweno Kiptui v Kenya Pipeline Company Limited, the court held that even employees liable to summary dismissal under section 44 are entitled to a hearing under section 41. No hearing was given, rendering the termination unfair despite the valid reason.
Entitlement to pay in lieu of notice, leave pay and service pay
The Claimant was awarded one month's notice pay and 80 days' leave pay; service pay was refused.
Having found the termination unfair for want of a hearing, the court awarded one month's gross salary in lieu of notice based on the January 2014 payslip. On leave, the court held that the employer bears the burden of keeping and producing leave records; failing to produce them or a policy on forfeiture of leave, the claim succeeded. Service pay failed because the Claimant was an NSSF member whose contributions were duly remitted under section 35(5).
Legal principles established
#- An employer must prove both the reason for termination and that a fair procedure, including a hearing, was followed; termination without a hearing is unfair even where a valid reason exists.
Court orders
#- 1.One month's gross salary in lieu of notice of Kshs.159,260.00
- 2.Pay in lieu of 80 days' leave (based on basic pay) of Kshs.272,978.60
- 3.Four (4) months' gross salary as compensation of Kshs.637,040.00
- 4.Total award of Kshs.1,069,278.60
- 5.The respondent shall pay the claimant's costs of the suit
- Jurisdiction invoked
- Employment Act, 2007 (claims arising out of termination of a contract of employment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Moss Cheptum v Geothermal Development Company [2019] KEELRC 1454 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1454/eng@2019-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.