Omukhulu & 2 others v Zhejiang Chengjian Construction Africa Limited (Cause 927 of 2018) [2024] KEELRC 1500 (KLR)
The bottom line
#A Kenyan court ruled three carpenters were unfairly dismissed because the employer never gave them a hearing before locking them out.
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 Claimants' contracts were terminated fairly and for valid reason
- 2.whether the Claimants are entitled to the remedies sought
Key legal issues
#Whether termination was for a valid reason
The Respondent failed to establish valid reasons; it alternated between claiming the Claimants absconded and that it dismissed them
The Respondent asserted the Claimants absconded and were not dismissed, yet its own witness conceded on cross-examination that the Respondent dismissed them after they declined to sign warning letters. No show-cause or disciplinary process was convened where the Claimants could explain, for instance, that they had been advised to take a break to allow concrete to settle. The employer therefore failed to justify termination under Sections 43 and 45 of the Employment Act.
Whether the termination procedure met the statutory minimum standards of fairness
It did not; the Claimants were not heard, were angrily ordered to leave, and their gate passes were confiscated, locking them out of the workplace
Section 41 requires notification and a hearing before termination on grounds of misconduct. Instead of convening a disciplinary forum, the Respondent required the Claimants to sign letters whose nature (resignation or warning) was unclear, then ordered them away and confiscated their gate passes. The Court held the employer should have given the Claimants a chance to tell their story. The procedure fell below the minimum fairness standards under Sections 41 and 45.
Entitlement to remedies
Notice at one month's salary and compensation of three months' salary each awarded; house allowance, transport, leave, holiday pay and April 2018 salary claims failed
Having found the termination unfair, the Court granted notice pay and reduced compensation of three months' gross salary, taking into account the Claimants' short service of about 13-14 months and their contribution to the termination by refusing to sign the letters presented to them. Claims for house allowance failed because gross daily pay included the housing element; transport, leave and holiday pay were conceded as paid; and no evidence supported payment for six days in April 2018.
Legal principles established
#- An employer must afford an employee a hearing and a chance to show cause before termination; failure to convene a disciplinary forum renders termination procedurally unfair under Sections 41 and 45 of the Employment Act
- The employer bears the burden of establishing valid and fair reasons for termination under Sections 43 and 45 of the Employment Act
Court orders
#- 1.It is declared that termination was unfair and unlawful
- 2.The Respondent shall pay the 1st Claimant compensation at Kshs. 62,400 and notice at Kshs. 20,800 - total Kshs. 83,200
- 3.The Respondent shall pay the 2nd Claimant compensation at Kshs. 62,400 and notice at Kshs. 20,800 - total Kshs. 83,200
- 4.The Respondent shall pay the 3rd Claimant compensation at Kshs. 55,528 and notice at Kshs. 18,528 - total Kshs. 74,112
- 5.No order on the costs
- 6.Interest granted at court rate, from the date of Judgment, till payment is made in full
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 (Sections 41, 43 and 45 applied); not expressly stated in judgment
Relief refused
#House allowance
Daily-rated pay described as gross already included the housing element
Transport allowance and annual leave
Claimants conceded pay slips showed payment of transport, leave pay and holiday pay
Salary for 6 days worked in April 2018
No convincing evidence that they worked those days and were denied salary
12 months' salary compensation (reduced to 3 months)
Claimants worked only just over a year and may have contributed to termination by refusing to sign the letters
Costs
No order on the costs
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.
In Sum, it is Ordered: a. It is declared that termination was unfair and unlawful.
The Respondent did not establish the reason, or reasons to justify termination of the Claimants' respective contracts of employment under Section 43 and 45 of the Employment Act.
Procedure did not meet the minimum standards of fairness, prescribed under Sections 41 and 45 of the Employment Act.
It was important that the Respondent gave the Claimants a chance to tell their story, rather than angrily command them to leave when they declined to sign the warning letters.
No order on the costs.
Interest granted at court rate, from the date of Judgment, till payment is made in full.
Issues in the judgment
#The Claimants' pleading dates the signing of resignation letters as 6th April 2018, while the 1st Claimant testified they were asked to sign letters on 5th April 2017, an apparent year discrepancy
The award for the 3rd Claimant (compensation Kshs. 55,528 and notice Kshs. 18,528) does not correspond to three months and one month of his pleaded monthly salary of Kshs. 18,528, unlike the other Claimants' awards
Case number and neutral citation are not stated anywhere in the judgment text supplied
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omukhulu & 2 others v Zhejiang Chengjian Construction Africa Limited (Cause 927 of 2018) [2024] KEELRC 1500 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1500/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.