Mulla v Unga Farm Care East Africa Limited (Employment and Labour Relations Cause E038 of 2022) [2024] KEELRC 1790 (KLR)
The bottom line
#A Kenyan employer's flawed disciplinary hearing and unproven allegations made a dismissal unfair, costing it over Kshs 1.3 million.
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 dismissal of the Claimant was fair and justified.
- 2.Whether the Claimant is entitled to the remedies sought.
Key legal issues
#Whether the dismissal of the Claimant was procedurally fair
The dismissal was procedurally unfair: the Respondent denied the claimant a representative of his choice from his department, denied virtual attendance of his witness, and delayed the hearing, contrary to section 41 of the Employment Act
RW-1 admitted directing the claimant not to choose an employee from his department. The hearing, scheduled for 2pm, started at 4pm/4:30pm causing the claimant's chosen witness Amimo to leave. A request for the witness to be heard virtually was refused. Section 41 entitles an employee to have another employee or shop floor union representative of his choice present, and ILO Convention 158 and Recommendation 166 reinforce this right. The court held the Respondent flaunted these clear requirements.
Whether there were valid reasons for the dismissal
The Respondent failed to prove valid reasons; some charges (Mwanecko kickbacks and sitting in the Mwanecko disciplinary hearing) were never in the show cause letter, and RW-1 admitted there was no proof the claimant bypassed FIFO
The show cause letter dated 18/11/2021 did not include the kickback allegation or the Mwanecko disciplinary hearing charge, which were introduced only at the hearing - an ambush. RW-1 admitted the kickback issue was not in the show cause letter and that there was no proof the claimant bypassed FIFO. Under section 45(2) the employer bears the burden of proving valid reasons, which, given the flawed disciplinary process, the Respondent failed to discharge.
Whether the Claimant is entitled to the remedies sought
The claimant received 8 months' compensation and 2 months' notice pay, but house allowance was refused because his salary was consolidated
Having found the termination unfair and unjustified, the court exercised discretion under section 49 to award 8 months' salary as compensation and notice pay of 2 months per the employment contract. Despite the claimant's reliance on Grain Pro and Vipingo Ridge, the court held the contract provided a consolidated pay, excluding the house allowance claim. A certificate of service was ordered.
Legal principles established
#- An employer must allow an employee to be accompanied by an employee or shop floor union representative of his choice during disciplinary explanation, and failure vitiates the hearing
- A termination is unfair where the employer fails to prove a valid and fair reason and fair procedure under section 45(2) of the Employment Act
Court orders
#- 1.Compensation of 8 months' gross salary for unfair termination (Kshs 1,076,239.20)
- 2.Two months' notice pay as per the employment contract (Kshs 269,059.80), total Kshs 1,345,299 subject to statutory deductions
- 3.Claimant to be issued with a certificate of service
- 4.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
- First-instance jurisdiction under the Employment Act, 2007 (Sections 41, 43, 44(4), 45(2), 47(5), 90) over a memorandum of claim for unfair termination
Relief refused
#84 months' house allowance of Kshs 1,943,028.36
The claimant was on a consolidated salary as per his contract of employment
12 months' gross pay compensation
Court in its discretion awarded 8 months instead of the maximum 12 months
Costs
The Respondents 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.
Having found that the disciplinary process was fiawed and that some of the reasons for dismissal of Claimant were not proved, I find the dismissal of the Claimant unfair and unjustified as per section 45 (2) above.
It is apparent that the law is clear on the mode of hearing allowable in disciplinary hearing which the Respondents fiaunted and have admitted to the same.
I exercise my discretion and award him 8 months’ salary as compensation
Claim for house allowance is not payable as Claimant was given a consolidated pay as per his contract of employment.
The Respondents will pay costs of this suit plus interest at court rates with efiect from the date of this judgment.
Issues in the judgment
#The judgment states inconsistently that the meeting started late: the claimant's evidence is that it commenced at 4pm while the court records the Respondent admitting a start at 2.30pm (also recorded elsewhere as 4:30pm)
Typographical error in the dismissal letter date ('2/1/12/2021') and in the claimant's evidence the dismissal letter is described as dated 2nd December, 2021
RW-1's testimony on notice entitlement is internally inconsistent as recorded - entitlement to 60 days' notice but summary dismissal requiring no notice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulla v Unga Farm Care East Africa Limited (Employment and Labour Relations Cause E038 of 2022) [2024] KEELRC 1790 (KLR)", Case Analysis (2024). Not stated in judgment (memorandum of claim filed 18th October 2022, amended 26th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1790/eng@2024-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.