Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment (Memorandum of Claim dated 23/1/2020, filed 6/2/2020)· [2024] KEELRC 2150 (KLR)

Mutuku v Total Kenya PLC (Cause 7 of 2020) [2024] KEELRC 2150 (KLR)

Employment and Labour Relations Court
31 July 2024
4,725 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled Total Kenya unfairly fired an engineer, ordering it to pay Kshs 3,096,640 because the employee never got a proper hearing.

What this practically means

#

Executive summary

#
The Claimant, formerly a Terminal Engineer employed by Gapco Kenya Limited and transferred to the Respondent (Total Kenya PLC) upon acquisition in 2017, was terminated on 20/5/2019 on grounds of misconduct arising from allegations that he received money from a re-seller customer, Peter Kipyegon Cheruiyot. The Claimant sued for a declaration of unfair termination, 12 months' salary as compensation, a certificate of service, costs and interest. The Respondent maintained that the Claimant received a fair hearing through a meeting of 16/1/2019, a show cause letter, and his written responses. The court framed two issues: whether the termination was unfair, and whether the reliefs sought were deserved. On procedural fairness, the court held that the 16/1/2019 meeting preceded disclosure of the charges and did not satisfy the mandatory requirements of Section 41 of the Employment Act; the Claimant was never notified of his right to be accompanied, and no oral hearing followed his written response to the show cause letter. On substantive fairness, the alleged conflict of interest was not demonstrated: Cheruiyot testified for the Claimant that their dealings were personal purchases of farm produce, and that evidence was unrebutted. The court declared the termination substantively and procedurally unfair, awarded compensation of ten months' gross salary (Kshs 3,096,640) subject to statutory deductions, ordered issuance of a certificate of service within thirty days, and awarded the Claimant costs plus interest at court rates from the date of judgment.

Key legal issues

#
01

Procedural fairness of the termination

Holding

Termination was procedurally unfair: the 16/1/2019 meeting preceded disclosure of charges, the Claimant was not notified of his right to be accompanied, and he was never accorded an oral hearing after responding to the show cause letter

Reasoning

Section 41 of the Employment Act is mandatory. It requires the employer to explain reasons for contemplated termination in the presence of a companion chosen by the employee, and to hear representations before termination. The 16/1/2019 meeting was an ambush, coming before the charges were disclosed. The termination letter shows the Respondent acted merely on written responses to the show cause letter and emails, with no oral hearing thereafter.

p. 7
02

Substantive fairness - validity of the reason for termination

Holding

The Respondent failed to demonstrate a valid reason under Section 45(2)(a); no conflict of interest was established

Reasoning

Peter Kipyegon Cheruiyot, the person from whom the Claimant allegedly received money, corroborated the Claimant's account that their dealings were personal purchases of farm produce. His evidence was not rebutted by counter-evidence or in cross-examination. The Claimant, a Terminal Engineer, did not deal with re-sell customers, and it was not shown his personal dealings could influence or appear to influence his work.

p. 9
03

Reliefs deserved

Holding

Compensation of ten months' gross salary (Kshs 3,096,640) awarded, subject to statutory deductions; certificate of service ordered; costs and interest granted

Reasoning

Having found the termination both procedurally and substantively unfair, the court exercised its discretion under Section 49 of the Employment Act, considering the manner and circumstances in which the termination was effected, and awarded ten months' gross salary of Kshs 309,664. A certificate of service is a statutory entitlement under Section 51(1).

p. 9

Legal principles established

#
  • Termination without prior disclosure of accusations and without an oral hearing breaches Section 41 of the Employment Act and is procedurally unfair
  • Holding a meeting with an employee before disclosing the charges against him does not satisfy Section 41; the mandatory hearing must follow disclosure of the charges
  • Section 41 requires an oral and physical hearing where the employee may be accompanied by a fellow employee or union representative

Court orders

#
  1. 1.Declaration that termination of the Claimant's employment was substantively and procedurally unfair
  2. 2.Judgment entered for the Claimant against the Respondent for Kshs 3,096,640 being compensation for unfair termination (equivalent of 10 months' salary)
  3. 3.The awarded sum shall be subject to statutory deductions pursuant to Section 49(2) of the Employment Act
  4. 4.The Respondent shall issue the Claimant with a Certificate of Service pursuant to Section 51(1) of the Employment Act within thirty days of the judgment
  5. 5.The Claimant is awarded costs of the suit, plus interest on the awarded sum at Court rates from the date of the judgment
Jurisdiction invoked
Employment Act, 2007 (Sections 41, 45, 49, 51(2)) - first-instance employment claim

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mutuku v Total Kenya PLC (Cause 7 of 2020) [2024] KEELRC 2150 (KLR)", Case Analysis (2024). Not stated in judgment (Memorandum of Claim dated 23/1/2020, filed 6/2/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2150/eng@2024-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.