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ELRCPartially AllowedEmployment Cause, memorandum of claim dated 14th February 2023

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
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.

Questions the Court framed

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

  1. 1.Whether there were valid reasons to warrant dismissal of the Claimant.
  2. 2.Whether due process was followed before the Claimant was dismissed.
  3. 3.Whether the Claimant is entitled to the remedies sought.

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

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 over unfair termination claims under the Employment Act 2007

Relief refused

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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

p. 9

Costs

The Respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment.

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.

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.
p. 9unfair dismissal
The Claimant was not dismissed for fraud but for bribery which incident of bribery was not established.
p. 8valid reason
I award him 8 months salary as damages for the unfair termination = 8 x 88,000 – 704,000/=.
p. 9remedies – compensation
The Respondent will pay costs of this suit plus interest at court rates with effect from the date of this judgment.
p. 9final orders – costs

Issues in the judgment

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minor

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

minor

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

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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.