Mburu v CIC General Insurance Limited (Cause 53 of 2019) [2023] KEELRC 807 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the claimant was defamed by the letter of summary dismissal and its circulation
- 3.What remedies, if any, are due to the claimant
Key legal issues
#Procedural fairness in disciplinary process
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.
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).
Defamation claim
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.
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.
Remedies for unfair termination
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.
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.
Legal principles established
#- 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
#- 1.A declaration that employment terminated unlawfully and unfairly
- 2.Compensation awarded at ksh.120,000
- 3.Notice pay ksh.40,000
- 4.A Certificate of Service shall issue
- 5.Costs of the suit to the claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
Costs
Costs of the suit awarded to the claimant ('Costs of the suit').
Quotable passages
#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
The duty to ensure all workplace policies and procedures are issued and explained to the employee vests in the employer.
denial of a right to be heard renders any decision made null and void ab initio
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.
Issues in the judgment
#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.
The vehicle registration number appears inconsistently in the judgment (KBW 349G and KBW 345G).
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.