Kamande v Kakuzi PLC (Cause E652 of 2022) [2024] KEELRC 1509 (KLR)
The bottom line
#Kenya's Employment Court dismissed a teacher's unfair termination claim entirely, ruling her unauthorised absence was gross misconduct and her union must pay the employer's costs.
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 Claimant was dismissed on valid ground under Sections 43 and 45 of the Employment Act
- 2.Whether dismissal was executed fairly in accordance with Sections 41 and 45 of the Employment Act
- 3.Whether the Claimant merits the prayers sought
Key legal issues
#Validity of the ground for summary dismissal
Dismissal was justified - unauthorized absence during half-term constituted gross misconduct under the CBA and Sections 43, 44para 4[a] and 45 of the Employment Act
The Claimant was absent for three consecutive days without permission or lawful cause, despite an agreed arrangement to avail herself for holiday work and a history of unauthorized absences with written warnings. Clause 8.2[a] of the CBA defined such absence as gross misconduct. The court held the employer had clear justification under the Employment Act and the CBA.
Procedural fairness of the dismissal
The dismissal procedure complied with Sections 41 and 45 of the Employment Act
The Claimant was suspended with full pay, investigated, invited to a disciplinary hearing, heard in the company of a shop steward, dismissed with reasons, advised of the right of appeal, and granted a personal appeal hearing with the Chief Shop Steward. No fresh evidence was presented on appeal. The court found the procedure faultless.
Entitlement to gratuity and other contractual/statutory benefits
Gratuity, annual leave pay, house allowance, notice pay, compensation and underpayment claims all failed
Gratuity was excluded where dismissal was for gross misconduct under clause 10 of the CBA. Leave traveling allowance payments proved leave was taken. Free housing negated house allowance. Salary was collectively agreed via the CBA with Kpawu. Salary was paid to the last day worked. The Kunoppet conciliation point was irrelevant as the Respondent had no Recognition Agreement with that union.
Legal principles established
#- An employer lawfully summarily dismisses an employee who absents herself without permission or lawful cause, where the contract/CBA classifies unauthorized absence as gross misconduct, especially where the employee has a history of unauthorized absences.
- Suspension with pay, an investigation, a disciplinary hearing attended with a shop steward, and a personal appeal hearing satisfy Sections 41 and 45 of the Employment Act.
- Payment of leave traveling allowance, payable only prior to commencing annual leave, rebuts a claim that annual leave was never taken.
- An employee covered by a CBA negotiated by her trade union cannot fault terms collectively agreed by that union; a different union unconnected to the CBA cannot legitimately challenge its implementation.
Court orders
#- 1.The Claim is declined.
- 2.Costs to the Respondent, to be paid by the Claimant's current Trade Union, Kenya Union of Pre-Primary Education Teachers [Kunopett].
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court original jurisdiction under the Employment Act (Sections 41, 43, 44[4][a] and 45) and applicable CBA
Relief refused
#Compensation for unfair termination and one month's salary in lieu of notice
Dismissal was on valid ground and with a faultless procedure
Annual leave pay of Kshs. 298,308
Payslips showed payment of leave traveling allowance, indicating leave was taken
Gratuity of Kshs. 206,521
Clause 10 of the CBA excluded gross misconduct from gratuity entitlement
Underpayment of salary of Kshs. 1,848,945
Salary and allowances were collectively agreed in the CBA with her then Union Kpawu
House allowance
Free housing was provided under clause 13 of the contract and clause 9.1[a] of the CBA
Salary for days worked in June 2022
She was paid salary up to the last day worked
Costs
Costs to the Respondent, to be paid by the Claimant's current Trade Union, Kenya Union of Pre-Primary Education Teachers [Kunopett].
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.
The Respondent quite clearly, had justification in dismissing the Claimant, under Sections 43, 44 [4] [a] and 45 of the Employment Act and clause 8.2 [a] of the CBA.
Hearing was in accordance with Sections 41 and 45 of the Employment Act. Procedure was faultless.
She cannot have been paid leave travelling allowance, if she was not going on annual leave. It cannot be correct that the Claimant was denied annual leave throughout. Her prayer for annual leave is declined.
Her current Union was not involved in the authorship of the applicable CBA, to legitimately fault its implementation.
The Claim is declined.
Costs to the Respondent, to be paid by the Claimant's current Trade Union, Kenya Union of Pre-Primary Education Teachers [Kunopett].
Issues in the judgment
#The court orders costs paid by a non-party trade union (Kunopett) which was not recorded as a party to the proceedings, without explaining its joinder or the basis for a personal costs order against it
Judgment refers to a house allowance prayer by the Claimant, but no such prayer appears in the list of reliefs sought in the Statement of Claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamande v Kakuzi PLC (Cause E652 of 2022) [2024] KEELRC 1509 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1509/eng@2024-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.