Ajwang v Kenya Chemical Workers Union (Employment and Labour Relations Cause 17 of 2023) [2024] KEELRC 969 (KLR)
The bottom line
#A Kenyan court awarded a 36-year employee Kshs 3.96 million because his employer failed to prove bribery and denied him a fair 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 there were valid reasons to warrant dismissal of the Claimant.
- 2.Whether due process was followed before the Claimant was dismissed.
- 3.Whether the Claimant is entitled to the remedies sought.
Key legal issues
#Whether there was a valid reason for dismissal
No valid reason: the claimant was dismissed for bribery, which was not established
The claimant was dismissed by letter citing bribery. Mrs Maube, the alleged bribe-giver, denied giving a bribe and was not called at the disciplinary hearing. The claimant admitted receiving Kshs 25,000 as union dues arrears which he receipted. The court held bribery was not proved, so under section 43 the reason for termination was not valid.
Whether due process was followed
No fair disciplinary hearing: accusers were not called and the claimant could not cross-examine them
Under section 41, the employee must be told the reasons and be allowed representation. The respondent admitted the widow and the complainant were not called as witnesses at the disciplinary hearing, denying the claimant an opportunity to cross-examine his accusers. The court found the process envisaged for a proper disciplinary hearing was not followed.
Whether the dismissal was unfair
Dismissal was both substantively and procedurally unfair
Applying section 45(2), termination is unfair if the employer fails to prove a valid and fair reason and fair procedure. Having found no valid reason and no fair hearing, the court concluded the summary dismissal was unfair and unjustified.
Legal principles established
#- An employer must prove the reason for termination under section 43 of the Employment Act; failure renders termination unfair
- A fair disciplinary hearing under section 41 requires the employee be informed of the reasons and be entitled to have a representative present
Court orders
#- 1.Award of 8 months' salary as damages for unfair termination (8 x 88,000 = Kshs 704,000)
- 2.One month's pay in lieu of notice (Kshs 88,000)
- 3.Gratuity per contract letter of 14/8/2016 (88,000 x 36 = Kshs 3,168,000)
- 4.Total award of Kshs 3,960,000 less statutory deductions
- 5.Claimant to be issued with a Certificate of Service
- 6.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act 2007
Relief refused
#Accumulated salary arrears of Kshs 800,000
Not awarded in the remedies; court awarded only damages, notice pay and gratuity
General damages for emotional distress and slander
Not included in the awards made
Exemplary damages for destruction of dignity
Not included in the awards made
12 months' salary as compensation
Court awarded 8 months' instead of the 12 months sought
Costs
The Respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment.
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.
Given that there lacked valid reason to dismiss the Claimant and that he was not accorded a fair disciplinary hearing, I find his dismissal unfair and unjustified.
The Claimant was not dismissed for fraud but for bribery which incident of bribery was not established.
I award him 8 months salary as damages for the unfair termination = 8 x 88,000 – 704,000/=.
The Respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment.
Issues in the judgment
#Judgment states the claimant served the Respondent for 30 years when the claim and defence plead 36 years of service used in the gratuity computation
Judgment gives the dismissal letter date as 6th January 2022 whereas the memorandum of claim pleads dismissal by letter of 26th January 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ajwang v Kenya Chemical Workers Union (Employment and Labour Relations Cause 17 of 2023) [2024] KEELRC 969 (KLR)", Case Analysis (2024). Employment Cause, memorandum of claim dated 14th February 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/969/eng@2024-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.