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ELRCAllowedNot stated in the judgment as provided· [2023] KEELRC 1397 (KLR)

Mwau v Afri Piping Systems Limited (Cause 136 of 2019) [2023] KEELRC 1397 (KLR)

Employment and Labour Relations Court
8 June 2023
MNMathews N. Nduma
676 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded an accounts administrator Kshs 420,000 because his employer dismissed him without notice, a reason, or a hearing.

What this practically means

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Executive summary

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This was an undefended employment suit before the Employment and Labour Relations Court at Nairobi, presided over by Mathews N. Nduma, Judge, decided on June 8, 2023. The claimant, employed as an Accounts Administrator on a monthly salary of Kshs 140,000 from March 27, 2017, alleged that he was verbally suspended on February 6, 2019 by the Managing Director and dismissed without notice, a notice to show cause, a hearing, or any reason, and without payment in lieu of notice or a certificate of service. The amended Statement of Claim was duly served but the respondent neither entered appearance nor filed a response, and the suit proceeded formally on February 6, 2023, with the claimant adopting his witness statement and exhibits; his testimony was unrebutted. The court found that the claimant was employed for two years, earned Kshs 140,000 monthly, and that the dismissal was not preceded by notice or a hearing, violating Sections 36, 41, 43 and 45 of the Employment Act, applying Mary Chemweno Kiptui v Kenya Pipeline Company Limited and Alphonce Machanga Mwachanya v Operation 690 Limited. The summary dismissal was held unlawful and unfair. Under Section 49(1)(c) and (4), the court awarded compensation of two months' salary (Kshs 280,000) given the claimant's lack of contribution to the dismissal, diligent service, and sudden loss of livelihood, plus Kshs 140,000 in lieu of notice and a certificate of service within 30 days, totaling Kshs 420,000, with interest at court rates and costs of the suit.

Key legal issues

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01

Lawfulness and fairness of the summary dismissal

Holding

The dismissal was unlawful and unfair as it was not preceded by notice, a notice to show cause, a hearing or a valid reason

Reasoning

The claimant's uncontroverted testimony established that he was verbally suspended, then dismissed without notice, notice to show cause or an opportunity to be heard, and without any reason being given. Unrebutted evidence was accepted, and the court found the dismissal breached Sections 36, 41, 43 and 45 of the Employment Act, applying the authorities cited.

p. 2
02

Quantum of compensation under Section 49(1)(c) and (4)

Holding

Compensation equivalent to two months' salary (Kshs 280,000) awarded in addition to one month's pay in lieu of notice

Reasoning

In exercising the Section 49 discretion, the court noted the claimant did not contribute to the dismissal, was shocked by the sudden dismissal without hearing, had served diligently for two years, lost his livelihood, and received no terminal benefits or certificate of service to ameliorate the loss. Two months' salary was deemed appropriate compensation.

p. 2

Legal principles established

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  • Summary dismissal without notice, notice to show cause or a hearing violates Sections 36, 41, 43 and 45 of the Employment Act
  • A claimant unfairly dismissed without valid reason or fair procedure is entitled to payment in lieu of notice and compensation under Section 49(1)(c) and (4) of the Employment Act

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent for Kshs 140,000 in lieu of notice
  2. 2.Kshs 280,000 compensation for unlawful dismissal
  3. 3.Certificate of Service to be granted in 30 days
  4. 4.Total award of Kshs 420,000
  5. 5.Interest at Court rates from date of judgment till payment in full
  6. 6.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment ActSections 36, 41, 43, 45
  • Employment Act, 2007Section 49(1)(c) and (4)

Cases cited (2)

  • Mary Chemweno Kiptui vs Kenya Pipeline Company Limited
    [2014] eKLR
  • Alphonce Machanga Mwachanya vs Operation 690 Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 36, 41, 43, 45 and 49)

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, "Mwau v Afri Piping Systems Limited (Cause 136 of 2019) [2023] KEELRC 1397 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1397/eng@2023-06-08

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