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ELRCPartially AllowedNot stated in judgment (file heard together with ELRC Cause No. 54 of 2019 – Duncan Gitugo v CIC General Insurance Limited)

Mburu v CIC General Insurance Limited (Cause 53 of 2019) [2023] KEELRC 807 (KLR)

Employment and Labour Relations Court
27 March 2023
3,205 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled CIC Insurance unfairly dismissed an employee because it withheld the investigation report before his disciplinary hearing.

What this practically means

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Executive summary

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In this first-instance ELRC claim heard at Mombasa together with ELRC Cause No. 54 of 2019 (Duncan Gitugo v CIC General Insurance Limited), the claimant, a Sacco Assurance Officer employed on August 14, 2013, sued CIC General Insurance Limited after summary dismissal on November 26, 2018 for allegedly circumventing motor vehicle claim assessment procedures with intent to defraud in connection with a claim over vehicle KBW 349G. He sought declarations of unfair termination and non-compliance with summary dismissal requirements, terminal dues, commissions, 12 months' compensation, a certificate of service, defamation damages and costs. The respondent maintained that due process was followed, that the claimant used another employee's computer and a conflicted agency to bypass claims procedures, and that the dismissal letter was only copied to internal officers. M. Mbaru J found that the claimant was taken through a disciplinary hearing without being given the investigations report, and that his employment contract did not disclose the applicable disciplinary rules or policy documents as required by section 12(1) of the Employment Act; he was also denied a right of appeal. The termination was therefore procedurally unfair and unlawful under section 45. The defamation claim failed for want of particularisation, copying senior officers not being defamatory. The court declared the termination unlawful and unfair, awarded notice pay of ksh.40,000 and compensation of ksh.120,000 (3 months' gross wage for 5 years' service), ordered issuance of a Certificate of Service, and awarded the claimant costs. Note: the judgment contains an internal figure inconsistency (ksh.12,000 vs ksh.120,000) and does not state the claimant's name or this file's cause number.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the termination of the claimant's employment was for a valid reason and in accordance with fair procedure under sections 41, 45 and 49 of the Employment Act
  2. 2.Whether the claimant was defamed by the letter of summary dismissal and its circulation
  3. 3.What remedies, if any, are due to the claimant

Key legal issues

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01

Procedural fairness in disciplinary process

Holding

The disciplinary process was unfair because the claimant attended the hearing without the investigations report and without the applicable policy documents having been issued to him; termination was therefore unlawful under section 45.

Reasoning

The court held that due process requires the employer to conduct investigations and share the outcome with the employee before a disciplinary hearing, citing section 41(2) of the Employment Act. The claimant's contract of employment contained no reference to policy documents as required by section 12(1), so the employer was exposed and the claimant could not be faulted for shop-floor practice. He was also denied a right of appeal contrary to section 45(5)(a).

p. 6
02

Defamation claim

Holding

The defamation claim failed; copying senior management officers on the dismissal letter was not defamatory and circulation to social media was not particularised or proved.

Reasoning

The court found that the respondent, as a corporate body, copied officers such as the Group CEO, MD and GM who legitimately needed to know; such sharing could not be defamatory. The claimant did not particularise how the letter reached social media, and his witness did not address defamation to the required standard.

p. 6
03

Remedies for unfair termination

Holding

Notice pay of ksh.40,000 under section 35, compensation of 3 months' gross wage under sections 45 and 49 for 5 years of service, and a Certificate of Service under section 51 were awarded.

Reasoning

On the finding that there was no due process, the court awarded notice pay based on the last gross wage of ksh.40,000 and compensation equivalent to three months' gross wage, taking into account the claimant's five years of service, and directed issuance of a Certificate of Service pursuant to section 51 of the Act.

p. 6

Legal principles established

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  • Part of due process before termination is that the employee be given the results of investigations before a disciplinary hearing so as to respond effectively.
  • The duty to issue and explain workplace policies and procedures vests in the employer and cannot be assumed to be known by the employee.
  • A denial of the right to be heard renders a decision null and void ab initio notwithstanding that the same result might have been reached.

Court orders

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  1. 1.A declaration that employment terminated unlawfully and unfairly
  2. 2.Compensation awarded at ksh.120,000
  3. 3.Notice pay ksh.40,000
  4. 4.A Certificate of Service shall issue
  5. 5.Costs of the suit to the claimant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 35, 41, 45, 49 and 51)
Consolidated with
ELRC Cause No. 54 of 2019 – Duncan Gitugo v CIC General Insurance Limited

Relief refused

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Damages for defamation and payment of all commissions and bonuses arising from Sacco business

The defamation claim failed for lack of particularisation and proof; no evidence supported the commissions/bonuses claim; only notice pay, compensation and certificate of service were awarded.

p. 6

Costs

Costs of the suit awarded to the claimant ('Costs of the suit').

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Without the investigations report, the employee attending at the disciplinary hearing would simply be groping into the darkness with the employer well aware of the outcome of the investigations
p. 4procedural fairness – disclosure of investigations report
The duty to ensure all workplace policies and procedures are issued and explained to the employee vests in the employer.
p. 6employer's duty to issue workplace policies
denial of a right to be heard renders any decision made null and void ab initio
p. 5natural justice
judgment is hereby entered for the claimant against the respondent in the following terms; a. A declaration that employment terminated unlawfully and unfairly; b. Compensation awarded at ksh.120,000; c. Notice pay ksh.40,000; d. A Certificate of Service shall issue; and e. Costs of the suit.
p. 6final orders/disposition

Issues in the judgment

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material

Internal inconsistency in the compensation award: the reasoning states 3 months' gross wage compensation at 'ksh.12,000' while the final orders award 'ksh.120,000', and 3 months of the stated gross wage of ksh.40,000 would be ksh.120,000.

minor

The vehicle registration number appears inconsistently in the judgment (KBW 349G and KBW 345G).

material

The claimant's name and the ELRC cause number of this file are not stated anywhere in the judgment; only the companion file (ELRC Cause No. 54 of 2019 – Duncan Gitugo) is identified.

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, "Mburu v CIC General Insurance Limited (Cause 53 of 2019) [2023] KEELRC 807 (KLR)", Case Analysis (2023). Not stated in judgment (file heard together with ELRC Cause No. 54 of 2019 – Duncan Gitugo v CIC General Insurance Limited). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/807/eng@2023-03-27

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