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ELRCPartially AllowedCause No. 323 of 2019· [2021] KEELRC 266 (KLR)

Luka Muvinga Mutemi v Sai Raj Limited [2021] KEELRC 266 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
11 November 2021
MMM. Mbaru
1,466 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded an employee compensation because his employer fired him for misconduct without giving him a hearing or proving the allegations.

What this practically means

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Executive summary

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The claimant, employed on 1st August 2018 as a production supervisor on a two-year contract at a monthly salary of Ksh.85,000, sued the respondent alleging that his employment was terminated without reasons and without due process, and sought payment of the 19 months' unexpired contract term, notice pay, transport and house allowances. The respondent asserted that the claimant's employment was lawfully terminated for gross negligence and poor performance, alleging he had been warned severally and had written letters admitting misconduct. The claimant called a forensic document analyst who opined that the alleged admission letters were not signed by him. The court held that the respondent's allegations of laziness, negligence and gross misconduct were left bare and without evidence, and that the alleged admission letters bore signatures at great variance with the claimant's known signature. Relying on the mandatory requirements of section 41 of the Employment Act, 2007, the court found no evidence that the claimant was notified, heard or allowed representation before termination, rendering the termination unlawful and unfair under section 45. On remedies, the court declined to award the full unexpired contract term, noting the claimant had not addressed mitigating factors such as failure to secure new employment, and instead awarded two months' salary as compensation (Ksh.170,000) under section 49 and one month's notice pay (Ksh.85,000) under section 35. The claims for transport and house allowances were rejected as not benefits under the contract. Judgment was entered for the claimant with interest after 60 days and costs of the suit.

Key legal issues

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01

Whether termination was procedurally fair under section 41 of the Employment Act

Holding

Termination was unlawful and unfair as the claimant was not notified and heard

Reasoning

Section 41 is couched in mandatory terms requiring the employer to notify the employee, explain reasons and hear representations before termination. The respondent alleged negligence, poor performance and misconduct but adduced no evidence of show-cause notice or hearing. The allegations were left bare and unproved, so termination failed the procedural fairness requirement under sections 41 and 45.

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02

Whether the letters admitting misconduct were genuine

Holding

The court doubted the authenticity of the letters, which bore signatures at great variance with the claimant's known signature

Reasoning

The claimant denied writing the admission letters and called a forensic document analyst who concluded the signatures were not his. Comparing the disputed documents with documents admittedly written by the claimant, the signatures were at great variance. Even if genuine, absence of a hearing would still render termination unfair.

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03

What remedies were due

Holding

Two months' salary as compensation under section 49 and one month's notice pay under section 35

Reasoning

Having found unfair termination, the court awarded compensation equivalent to two months' salary (Ksh.170,000) noting the claimant had not shown mitigating factors such as failure to secure alternative employment. No evidence showed notice had issued before termination, so one month's notice pay of Ksh.85,000 was awarded under section 35.

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Legal principles established

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  • Before termination on grounds of misconduct, poor performance or incapacity, an employer must explain the reasons and hear the employee's representations, per section 41 of the Employment Act, 2007
  • The employer bears the burden of proving valid reasons for termination and compliance with the statutory procedure

Court orders

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  1. 1.Judgment entered for the claimant against the respondent in the sum of Ksh.170,000 compensation
  2. 2.Notice pay of Ksh.85,000 awarded
  3. 3.Dues payable within 60 days, failing which they shall attract interest until paid in full
  4. 4.Costs of the suit to the claimant
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Employment and Labour Relations Court Act)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Luka Muvinga Mutemi v Sai Raj Limited [2021] KEELRC 266 (KLR)", Case Analysis (2021). Cause No. 323 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/266/eng@2021-11-11

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.