Tailors & Textiles Workers’ Union v Emke Garments Kenya Ltd (Cause 36 of 2007) (Civ) [2007] KEIC 5 (KLR)
The bottom line
#A Kenyan court ruled an employee cannot be fired without notice and a fair chance to respond, awarding him full compensation when the employer stayed silent.
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 grievant, Andrew Mbwagwa, on account of alleged low production, laziness and inefficiency was wrongful and unlawful
- 2.Whether the grievant was accorded natural justice (notice, charge-sheet and opportunity to be heard) before dismissal
- 3.What remedies (reinstatement or terminal benefits and compensation) should be granted
Key legal issues
#Whether the summary dismissal for alleged laziness and inefficiency without notice, charge-sheet or enquiry was lawful
The dismissal was wrongful and a flagrant violation of natural justice; the Union's unchallenged claim was granted in full
The grievant had worked for about seven to eight years without any warning letter, undermining the allegation of laziness and inefficiency. Before dismissal he was given no written charge-sheet, no notice of the alleged misconduct and no opportunity to defend himself. The Court held that dismissal cannot be imposed without notice and a hearing, and that even an oral or written hearing before management would have sufficed. As the Company filed no reply statement and failed to appear, the claim stood unchallenged and was granted in full with 12 months' compensation.
Legal principles established
#- Dismissal of an employee requires notice and a reasonable opportunity to be heard; dismissal without a charge-sheet, notice or enquiry violates the rule of natural justice (audi alteram partem).
Court orders
#- 1.The Company is ordered to pay the Union's demand (wages unpaid Kshs. 4,416; house allowance Kshs. 68,159; notice pay Kshs. 9,984; unpaid leave Kshs. 30,720; 12 months' compensation Kshs. 59,904; total Kshs. 173,183) to the grievant within thirty (30) days from the date of the award
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Section 8 of the Trade Disputes Act, Cap. 234 (reference by the Minister for Labour and Human Resource Development)
Relief refused
#Reinstatement of the grievant to his job of mass production machinist from the date of dismissal without loss of back wages and benefits
The Court granted the alternative claim for terminal benefits and maximum compensation instead, the demand standing unchallenged; reinstatement was not awarded
Costs
No order as to costs was made in the award.
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.
Dismissal of an employee is a penalty which has serious consequences and it cannot be brought about without issuing a notice to an employee concerned and without giving him a reasonable opportunity to defend himself.
It would have been suficient compliance of the law if the grievant was heard by the management of the Company, either orally or in writing in his defence.
Since the claim or demand by the Union, on behalf of the grievant, stands unchallenged, and in view of the deliberate attempt by the management of the Company to procrastinate these proceedings, the demand hereinabove is granted; and the Company is Ordered to pay the same to the grievant within thirty (30) days from the date of this award.
Issues in the judgment
#The claimant's memorandum describes the grievant as having worked 'for a period of about eight (8) years' while the Investigator's findings state he 'worked diligently for 7 good years', and the submission says he was employed in 1995 yet dismissed in November 2002, a discrepancy in length of service.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Samuel Murathi Gatuua v Commissioner General of Prisons & 3 others [2022] KEELRC 1059 (KLR)[2022] KEELRC 1059 (KLR)18 Jan 2022
- Hassan Ahmednur Baricha & 7 others v Chief Land Registrar & 5 others [2021] KEELC 2222 (KLR)[2021] KEELC 2222 (KLR)7 Jun 2021distinguished
Cite this brief
#Cite this brief
Caselaw, "Tailors & Textiles Workers’ Union v Emke Garments Kenya Ltd (Cause 36 of 2007) (Civ) [2007] KEIC 5 (KLR)", Case Analysis (2007). Cause 36 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2007/5/eng@2007-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.