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ELRCPartially AllowedEmployment Cause, memorandum of claim dated 14th February 2023· [2024] KEELRC 969 (KLR)

Ajwang v Kenya Chemical Workers Union (Employment and Labour Relations Cause 17 of 2023) [2024] KEELRC 969 (KLR)

Employment and Labour Relations Court
3 April 2024
HWHellen Wasilwa
4,504 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed by the respondent union in 1986 and serving for 36 years as Area Secretary for Nyanza and Rift Valley, was summarily dismissed by letter of 26th January 2022 for allegedly receiving a bribe of Kshs 25,000 from Mrs Joan Maube, a widow seeking her late husband's terminal dues. He claimed the dismissal was unlawful and unprocedural: the allegations mutated (Kshs 25,000 in the show cause letter, Kshs 23,000 in the hearing invitation, fraud in the termination letter), his accusers were not called at the disciplinary hearing, he was not informed of his right to representation, and the appeal was decided by the same officer who dismissed him. The respondent maintained the dismissal was for just cause - illegally collecting money from a member's widow and failing to account for it - and that fair procedure including an appeal was followed. The court framed three issues: validity of reasons, due process, and remedies. It found the claimant admitted receiving Kshs 25,000 but that Mrs Maube denied it was a bribe and was never called to the disciplinary hearing, so bribery was not established. It further found the hearing unfair since the accusers were not summoned for cross-examination contrary to section 41 of the Employment Act. The dismissal was thus held unfair and unjustified. The court awarded 8 months' salary (Kshs 704,000) as compensation, one month's notice pay (Kshs 88,000), and gratuity of Kshs 3,168,000 per the 2016 contract, totalling Kshs 3,960,000 less statutory deductions, plus a certificate of service. Claims for salary arrears, general and exemplary damages were not granted. The respondent was ordered to pay costs with interest from the date of judgment. Judgment delivered virtually on 3rd April 2024 by Lady Justice Hellen Wasilwa.

Key legal issues

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01

Whether there was a valid reason for dismissal

Holding

No valid reason: the claimant was dismissed for bribery, which was not established

Reasoning

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.

p. 8
02

Whether due process was followed

Holding

No fair disciplinary hearing: accusers were not called and the claimant could not cross-examine them

Reasoning

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.

p. 8
03

Whether the dismissal was unfair

Holding

Dismissal was both substantively and procedurally unfair

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 1.Award of 8 months' salary as damages for unfair termination (8 x 88,000 = Kshs 704,000)
  2. 2.One month's pay in lieu of notice (Kshs 88,000)
  3. 3.Gratuity per contract letter of 14/8/2016 (88,000 x 36 = Kshs 3,168,000)
  4. 4.Total award of Kshs 3,960,000 less statutory deductions
  5. 5.Claimant to be issued with a Certificate of Service
  6. 6.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act 2007

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, "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.