Shako v Shifa Chem Limited (Cause 384 of 2013) [2014] KEIC 83 (KLR)
The bottom line
#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 was unfair
- 2.Whether the reliefs sought should be granted
Key legal issues
#Whether the summary dismissal was procedurally fair
Although the reason for dismissal (absenteeism) was valid, the procedure was unfair because the claimant was not given a hearing or allowed a companion as required by Section 41
The court accepted the reason for dismissal was valid, but Section 41 imposes mandatory procedural requirements: an oral hearing in a language the employee understands and in the presence of another employee of his choice. RW1 merely told the claimant he was dismissing him for absenteeism and did not allow him to defend himself or call a companion, rendering the dismissal unfair under Section 45.
Whether the claimant was on probation and thus entitled only to 24 hours' notice
The probation and its extension were not proved in writing; the claimant was a permanent employee entitled to one month's notice
The respondent produced no written evidence of a probation contract from 1-4-2013 to 30-6-2013 or of a written extension for three months from 1-7-2013. On a balance of probability the claimant served on a permanent basis from the date of employment and could not be terminated on 24 hours' notice like a casual worker.
Quantum of compensation for unfair termination
Two months' salary (Ksh.48,000) awarded as compensation, reflecting the claimant's contributory conduct, plus one month's salary in lieu of notice
Under Section 49, an unfairly dismissed employee is entitled to notice pay, accrued benefits and compensation. With the arrears claim withdrawn, no accrued benefits were sought. The court awarded one month's notice (Ksh.24,000) and reduced compensation to two months' salary because the claimant deliberately disobeyed the employer's denial of leave, mitigating what would otherwise have been a higher award.
Legal principles established
#- Before summary dismissal for misconduct, the employer must accord the employee an oral hearing in a language he understands in the presence of another employee of his choice (Section 41, Employment Act)
- An employee who pursues education while in employment may not absent himself during working hours where permission is denied
Court orders
#- 1.Judgment entered for the claimant in the sum of Ksh.72,000 plus costs and interest
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction under the Employment Act (Sections 41, 45 and 49); court/tribunal not stated in the judgment
Relief refused
#Claim for salary arrears for 10 days worked in September 2013
Withdrawn by the claimant
Compensation beyond two months' salary
Claimant was the author of his own misfortune by absenting himself after permission was denied
Costs
Costs to the claimant (judgment entered plus costs and interest)
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.
Where as the reason for dismissal was valid and fair reason to warrant summary dismissal, the court is not satisfied that the respondent followed a fair procedure as required under Section 41 and 45 of the Employment Act.
For the reasons above, judgment is entered for the claimant in the sum of ksh.72,000 plus costs and interest.
If permission is denied,the employee absents himself at the risk of losing his employment.
Issues in the judgment
#Judgment inconsistently records the extended probation daily rate, first as Ksh.8000 per day and later as Ksh.80
Judgment refers to RW2 although only RW1 (Mr. Murtaza Muhammed Ali) testified for the defence
Daily probation salary stated inconsistently: RW1 is recorded as saying pay was increased to ksh.80
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shako v Shifa Chem Limited (Cause 384 of 2013) [2014] KEIC 83 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/83/eng@2014-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.