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JudgmentDAVID DANIEL MUTUKU & ANOTHER VS TELKOM KENYA LIMITED24 min read

DAVID DANIEL MUTUKU & ANOTHER VS TELKOM KENYA LIMITED

Employment and Labour Relations Court at Nairobi Employment and Labour Relations Court (ELRC) · · J. N. Abuodha

Summary

The court addressed a dispute where two claimants alleged unlawful termination of employment following allegations of theft of recovered cables. The claimants argued they were terminated without valid reasons and due process, violating Article 158 of the 1982 ILO Convention. The Respondent maintained that the claimants were dismissed lawfully under Section 44 of the Employment Act for gross misconduct after investigations confirmed their involvement in the theft. The court found the Respondent complied with due process under Section 41 of the Employment Act and dismissed the claimants' claims for unlawful termination.


  1. The Claimants through their Memorandum of Claim dated 6th June, 2020 pleaded inter alia as follows: -
  2. That the 1st Claimant was employed by the Respondent as Technician on the 22nd April, 1991.That following his good performance and contribution the 1st Claimant was on 27th January,2016 the Respondent reviewed his salary from Kshs 61,383.00/= to Kshs 65,422.00/=
  3. The 1st Claimant continued executing his work with great diligence and commitment undertaking all assignments assigned to him within the given timelines. That on 9th May,2017 he received a notice to show cause letter from the Respondent on allegations that on 25th April,2017 following an authorized successful recovery of 200 meters of cable from around department of Defence Area(DOD) within Kilimani, Nairobi and subsequent storage of the same at the Respondent’s yard at Industrial Area, a private vehicle was intercepted driving out of the said yard carrying 180 meters of TKL Copper cable valued at Kshs 135,000 being a portion of what had been recovered. That he responded to the show cause letter.
  4. That it was further alleged that the 1st Claimant had helped in offloading the stolen cables from the Respondent’s lorry on to the private car and that the 1st Claimant had conspired with unnamed colleague to recover unathorized extra cable and that the he did not at any time raise alarm over the alleged extra unathorized recovered cable.
  5. The 1st Claimant averred that on the material day they recovered two pieces of cable 100 each 125 meters and whose length was measured and confirmed with the BICO TEST and afterwards the same were loaded on the Respondent’s lorry KAT 740X and driven straight to the Respondent’s yard at industrial Area along Dar es salaam Road. That they did not offload the said cable from the lorry as they left the yard, a facility the Respondent shared with an independent Garage.
  6. The 1st Claimant averred that he left the yard picked his keys from the Respondent’s South C Exchange and went home and he did not know what transpired at the yard after he left. That on 23rd May,2017 the 1st Claimant attended a disciplinary meeting where he was not given an opportunity to avail a representative of his choice to be present at the hearing.
  7. The 1st Claimant averred that prior to the disciplinary meeting he was not furnished with all the evidence in support of the case against him in particular he was not furnished with statement of Peter Mburu whose statement the disciplinary meeting relied on heavily alleging that he had instructed Mburu to park at the yard as well as the investigation Report relied by the committee.
  8. The 1st Claimant averred that the allegations against him were serious, he was ambushed and confronted with contents at the hearing with only parts of statement being read to him when he had the right to be furnished with each and every evidence against him to prepare for the hearing. That the meeting had a predetermined outcome because on 8th June,2017 the Respondent rendered its decision to terminate the 1st Claimant’s employment on account of gross misconduct. That he was convicted of dishonesty a charge which was not in the charge sheet against him.
  9. The 2nd Claimant on the other hand averred that he was employed by the Respondent on 14th October,1993 as Technician Trainee. That as at May 2017 he was earning a salary of Kshs 68,548.00/=. That despite rendering excellent service to his employer on the 8th May,2017 he received a show cause letter as to why he should not be disciplined.
  10. The 2nd Claimant averred that the Respondent gave the charges same of those of the 1st Claimant of the lost cable and that an unnamed security guard saw and confirmed that he had facilitated the entry of the said private vehicle in to the yard without undergoing the normal security process at the gate. That he had assisted in offloading of the stolen cable from Respondent’s lorry to the private car while he was in several telephone communications with the driver of the private car between 1400 hours and 1751 hours. That he instructed the driver to meet him at the yard to take delivery of the said unathorized recovered cable for onward transmission to an undisclosed yard along Funzi road.
  11. The 2nd Claimant just like the 1st Claimant denied those allegations, responded to the show cause letter, attended disciplinary meeting on 23rd May,2017 without the documents mentioned by the 1st Claimant as well as the said call logs. That the Respondent not comply with fair labour practices as per Article 41 of the Constitution.
  12. The 1st and 2nd Claimant averred that their rights were violated specifically Article 158 of the 1982 International Labour Organisation(ILO) for terminating them without valid reasons and due process.
  13. The 1st and 2nd Claimants in the upshot prayed for the following against the Respondent;
  14. A declaration that the 1st and 2nd Claimant’s termination of employment is illegal, null and void.
  15. Payment of maximum compensation arising from unlawful termination of employment.
  16. Payment of all the termination benefits due and owing to the Claimants.
  17. Interest on the above at court rates.
  18. The Respondent filed its statement of Response dated 27th July,2020 and averred inter alia as follows;
  19. The Respondent admitted the factual part of the Claimants’ appointments and averred that the Claimants failed to meet its expectations as spelled out in their job description. That upon the discovery of the attempts to swindle it cables that had been recovered, investigations were carried out and the Claimants were found culpable.
  20. The Respondent averred that the Claimants were in contact with a member of public, Peter Mburu on the day he was caught with the stolen cables just after he had driven out of the Telkom Yard in his vehicle. That the security guard on duty at the Telkom yard confirmed that the Claimant facilitated entry of Peter Mburu vehicle in to Telkom yard without adherence to the proper security process.
  21. The Respondent further averred that the said Peter Mburu confirmed in his own statement soon after the cables had been offloaded from the company vehicle to his vehicle the 1st Claimant instructed him to take them to another yard along Funzi Road. That investigation findings also revealed that Peter Mburu and the 2nd Claimant communicated on phone severally on the day he was caught with the cables, including the period after his arrest.
  22. The Respondent averred that the disciplinary committee noted that the information that was provided in investigation report was enough proof that the Claimants were aware of what was happening and it was through their participation that the theft of the cables occurred.
  23. The Respondent averred that it complied with due process given under Section 41 of the Employment Act as it carried out investigations, the Claimants informed of the exact nature of allegations and sufficient information vide letters dated 8th May,2017 and 9th May,2017. That they were to respond to the said letters in 3 days. That the Claimants were afforded an opportunity to have another employee or union representative from the disciplinary hearing notice minutes where there was a representative by the name Charles Biketi.
  24. The Respondent averred that following the disciplinary hearing it was not satisfied with the Claimants’ defenses during the hearing and decided to summarily dismiss them who were duly notified of their dismissal of employment in writing by the dismissal letter dated 8th June,2017.
  25. The Respondent averred that the outcome of the investigation was reduced in to writing and all the allegations and parties involved were clearly prescribed in the Notice to show cause letters of 8th May,2017 and 9th May 2017 which the Claimants were given opportunity to respond to. That there was nothing new in the disciplinary meeting as the same allegations in the letters were the same in the hearing.
  26. The Respondent averred that it terminated the Claimants lawfully and on valid grounds where it followed due procedure. That it had reasonable suspicion to believe that the Claimants’ actions were a breach of trust and a contravention of their terms of employment. That the dismissal was in tandem with section 41 of the Employment Act as the Claimants were given the right to be heard.
  27. The Respondent averred that it justified its grounds for dismissing the Claimants as required under sections 41,43 and 45 of the act. That the Claimants’ were dismissed in accordance with section 44 of the Act for gross misconduct and as per terms of employment. That the termination on grounds of misconduct was for all intent and purposes valid and in accordance with Sections 44,45 and 49 of the act. That trust and confidence was eroded by the act of stealing by the Claimants. That no damages for summary dismissal should be awarded to the Claimants in the circumstances and the suit should be dismissed with costs.

EVIDENCE

  1. The Claimants’ case was heard on 15th May,2023 with the 1st and 2nd Claimants testifying. The 1st Claimant herein David Daniel Mutuku (CW1) testified and adopted his statement and documents filed as his evidence in chief.
  2. CW1 testified that on 25th April, 2017 he was given authority to recover cable by the Respondent on a place which was vandalized. That they recovered the cable with his colleagues since they were a team. That the cable was about 200 meters and they took the cable to Dar es salaam road.
  3. CW1 testified that they showed the cable to security guard and they proceeded to Nairobi South to collect their things. That the next day they were told the cable was missing yet they left the cable in the lorry. That it was there even when it was claimed to be stolen.
  4. CW1 testified that they were told Peter Mburu was found with some cables yet they did not know how he obtained the cable and the size of the cable. That he was issued with a show cause letter on that loss. He was given three days to respond to the show cause letter which had no attachments but all the same he responded to the same.
  5. CW1 testified that they were called for disciplinary hearing which they were invited by telephone and not in writing. They were told they were required at the headquarters by HR. They did not prepare since they were called in the morning of the hearing on 23rd May,2017.
  6. CW1 testified that at the hearing they found the HR, Investigation team and managers. The hearing proceeded and thera was a Mr. Biketi from the union. It was his evidence that they were not the ones who called him. The charges were read to him and he responded. Peter Mburu’s statement was also read to him but he had no prior notice of or its contents.
  7. CW1 testified that he was never furnished with the Investigation report and after the hearing he was issued with termination letter which referred to the investigation report and the statement by Peter Mburu.
  8. CW1 testified that he was never involved in the loss of cables as they did not recover more than what was authorized. That they used Ecotest machine for testing the length of the cables both live and dead which was very accurate in measuring the length. That they were not fairly terminated and he sought to be compensated.
  9. In cross examination CW1 confirmed that he recovered the cables as authorized and he did not know about the theft. That they took the recovered cables to the yard and he did not see any strange vehicle at the yard. CW1 confirmed that he never understood the show cause letter but he never sought clarifications and he did not seek more time to respond. He knew why he was in the meeting and he signed the minutes.
  10. CW1 confirmed that they were ambushed as the member of the union in the meeting did not know him. He was not given time to defend himself as he was not issued with statements but defended himself. CW1 confirmed that he was terminated after the hearing and that the reason for termination was misconduct. There were four grounds of termination and his defence was considered.
  11. CW1 confirmed that they measured the cable length using Ecotest and he knew Benjamin his colleague. They measured first by their legs and then the Ecotest.
  12. In re-examination CW1 clarified that the show cause letter had no attachments. That Mburu’s statement was not included as well as the investigation report. There was no invitation letter to the hearing as they were called by telephone. The union official was not of his choice as he did not know him. That he was not given investigation report and he used Ecotest.
  13. The 2nd Claimant Benjamin Mutua (CW2) also testified and he adopted his statement and documents filed as his evidence in chief.
  14. CW2 reiterated that they were sent to recover the cables from DOD Kilimani which were vandalized. They recovered around 200 meters and loaded the cable in the Respondent’s lorry registration No. KAT 740X and took it to the yard and left for home.
  15. CW2 stated that the cables recovered were in the lorry despite the allegations that they were lost. That they were issued with show cause letter and they responded. That they were invited for the hearing by telephone. The show cause letter had no supporting documents to enable him understand the case against him.
  16. CW2 stated that when they were called in the morning he did not know it was a disciplinary hearing hence he did not prepare. That at the hearing charges were read to him and the Peter Mburu’s statement which he denied. It was his evidence that he did not know Biketi prior to the meeting and he was told he was union representative. He was not furnished earlier with Mburu’s statement, the investigation report or the call logs.
  17. CW2 stated that they signed the minutes of the proceedings and later they were terminated. They were terminated because of the stolen cables. He knew Peter Mburu for a long time and he did not know where Peter got the cables recovered from him since the ones they recovered were intact. CW2 stated that he appealed against the dismissal but was unsuccessful. It was his view that he was unfairly terminated as he was not involved in the theft of the cables. That they were ambushed by the Respondent.
  18. In cross examination CW2 confirmed that the yard had so many vehicles and there was a private garage in the yard. That he did not know or see the vehicle KAU. It was his evidence that he knew Mburu and they communicated frequently even on the material day.
  19. CW2 confirmed that they spoke many times as he wanted a car. He was not asked to explain his communication with Mburu yet the show cause letter indicated he was asked to explain. He responded to the issue and that he was given three days to respond. CW2 stated that the period was short and they requested verbally to be furnished with supporting documents which were never given. That he never got Mburu statement in advance. That the union representative was not of his choice at the hearing.
  20. CW2 confirmed that he was read the Mburu’s statement and investigation report but did not ask for more time as he was not allowed to talk freely.
  21. In re-examination CW2 clarified that there was a private garage in the yard and the yard was open. That there were no partitions yet there were many vehicles in the yard. CW2 further clarified that he did not know he was going for hearing but did not protest to the notice of hearing. The show cause letter never referred to call data. He was not told about the investigation report in the show cause letter and he did not know Biketi before. He never helped him in any way as he asked a few questions.
  22. CW2 clarified that he did not agree with the reasons for termination. That he knew Peter Mburu as he used to repair their vehicles and he had asked him to look around a car for him and they used to communicate a lot about it.
  23. The Respondent’s case was heard on 3rd October,2023 and 19th May,2024 where the Respondent called two witnesses Joseph Odundo (RW1) and Esther Mutunga(RW2).
  24. RW2 the Respondent’s HRO was heard on 3rd October,2023 who testified and adopted her statement and documents filed in court as her evidence in chief. RW2 acknowledged that the Claimants were the Respondents employees and due process was followed in their termination. That Notice to show cause was issued and they responded. That investigation was concluded before show cause was issued.
  25. RW2 testified that the Claimants were taken through disciplinary process which culminated in to their termination. That they appealed which appeal was out of time and the termination remained valid.
  26. In cross examination RW2 confirmed that the letter of invitation to disciplinary hearing was not before the court and the requirement to attend the hearing with a colleague or shop floor official was contained in the HR policy and Manual.
  27. RW2 confirmed that they did not attach the investigation report dated 5th May,2017, DCI Report dated 27th April,2017 and the Mburu’s statement. That the investigation report was confidential and the Claimants did not request additional information. The show cause letter showed what the Claimants were answering to.
  28. RW2 confirmed that part of Mburu’s statement was read to the claimants at the hearing and they never requested for the statement and that the termination letter referred to Mburu’s statement and the investigation report with the two forming the vital component for the termination.
  29. RW2 confirmed that the Claimants never disagreed with the report. It was her evidence that the policies were not before the court and that the record of vehicles showing vehicles getting in and out did not bear the name of person who recorded it, it was not signed and dated. RW2 confirmed that it was not necessary to share the response from DCI with the Claimants and that the Union nominated Biketi.
  30. In Reexamination RW2 clarified that the show cause letter indicated the charges which the Claimants were aware of. The Claimants never requested for additional documents at the hearing, they signed the minutes to confirm their contents and Mburu’s statement was vital to the disciplinary hearing since he was the driver of the vehicle carrying the cables.RW2 clarified that they did not have control over who represents employees at the disciplinary hearing.
  31. RW1 was heard on 19th May,2024 after he was stood down to enable counsel to share his statement with the Claimants on 3rd October,2023. RW1 testified and adopted his statement and documents filed in court as his evidence in chief.
  32. RW1 testified that when he reported to security office and went on patrol and his colleague also went on patrol and came back stating there was an incident. They went out and saw some Respondent employees removing wires from a truck to a private car. RW1 testified that they called the head office but they did not get any response. They raised an alarm and the Respondent employees stated that they were transferring the cable to another site which they were not aware. That AP officers came and arrested everyone. The vehicle left in the confusion together with Respondent staff.
  33. RW1 testified that his colleagues were released later in the day and he was called to record statement at the Respondent’s Headquarters. He was able to identify the Respondent’s staff involved who were in pink overalls.
  34. In cross-examination RW1 confirmed that he recorded statement on 26th April,2017, signed it and he identified the culprits by appearance not names. That he did not mention their names in his statement. That when he raised alarm BM security responded. RW1 confirmed that the police came when he was talking to BM security and everything happened simultaneously.
  35. In re-examination RW1 clarified that he identified the staff by their uniform and it was not first time to interact with them but they were not known to him at personal level. That he did not know their names.

CLAIMANTS’ SUBMISSIONS

  1. The Claimants’ Advocates Aduda & Company Advocates filed written submissions dated 4th November 2024.Counsel submitted on the issues of whether or not the termination of the 1st and 2nd Claimants by the Respondent was lawful, whether or not the 1st and 2nd Claimant were accorded substantive and procedural fairness as provided by section 41 of the Employment Act 2007 and what compensation was payable. Counsel invited this court to look at the case of Antony Mkala Chitavi versus Malindi Water & Sewarage Company Ltd Cause No.64 of 2012(2013) eKLR while addressing those issues more so on procedural fairness.
  2. Counsel submitted that an employee is entitled to know the allegations/charges against them, the right to adequately prepare, be heard and present their case either in person, in writing, or through a representative or union representative if possible. That the Claimants were never served with any invitation letters to a scheduled disciplinary hearing. That they were called to attend a disciplinary hearing without any advance notice to afford them the opportunity to prepare.
  3. Counsel further submitted that the Claimants were never supplied with any documents like the statement by Peter Mburu, the security report, the investigation report and the telephone call logs. That the decision to terminate the Claimants turned heavily on those crucial documents which the Respondent withheld to themselves and only read parts of them which suited them during the hearing. That the Human Resource when confronted she stated that the HRM Manual allowed them to withhold such reports but failed to produce the said manual to the court for the same to be verified.
  4. Counsel submitted that the union representative present was not a representative of their choice. In fact, he was part of the Disciplinary Committee invited by the Respondent and therefore his presence there was not in any way in conformity with section 41 of the Employment Act 2007.
  5. Counsel relied on the case of John Rioba Maugo Versus Riley Falcon Security Services Ltd Kisumu ELRC Cause No.7 Of 2015 while submitting that the Claimants were not informed of their rights to be accompanied and therefore the provisions of the law in that regard have not been complied with the Respondent did not adduce any evidence. That the Respondent did not discharge its burden under section 47(5) of the Act of justifying the grounds for termination of employment.
  6. Counsel submitted that there was neither substantive fairness nor procedural fairness in the termination of the Claimants employment hence the same was unfair. Counsel relied on the case of Kenya Plantation and Agricultural Workers Union Vs Eastern Produce(K) LTD Kericho ELRC Cause No.22 of 2019(2022) KEELRC 1303) KLR on the same assertions that there was no both substantive and procedural fairness. That the Claimants were entitled to the Maximum compensation under section 49(c) while taking the considerations given under section 49(4) of the Act on the nature of termination of the Claimants by the Respondent and its conduct.

RESPONDENT’S SUBMISSIONS

  1. The Respondent’s Advocates Kale Maina & Bundotich Advocates filed written submissions dated 14th October 2024. On the issue of whether the Claimants were unfairly terminated from employment or otherwise dismissed from employment counsel relied on among others the case of George Musamali v G4S Security Services Ltd [2016] eKLR and submitted that the Respondent proved that there was a valid and justifiable reason for termination of the Claimants’ employment and that a fair and substantive procedure was followed. Counsel relied on section 45 on proof of reasons for termination that it did prove the reasons for termination.
  2. Counsel submitted that the Claimants dismally failed to fully satisfy the provisions of Section 47(5) on burden of proof of unfair termination while relying on the case of Victor Mwanga vs Eden Reforestation Projects (Cause No. E088 of 2022) [2024] KEELRC 340 (KLR). Counsel submitted that justice must be availed not only to employees who claim to be wrongfully dismissed but also to employers who are merely protecting their interests by dismissing an employee for a valid reasons. Counsel relied on the case of Kenya Power & Lighting Company Limited v Aggrey Lukorito Wasike (2017) eKLR.
  3. Counsel submitted that the Respondent fairly dismissed the Claimants as they were involved in the theft of company’s property which amounted to gross misconduct and a legitimate ground for summary dismissal under section 44 of the Act. That the Respondent took the Claimants through the procedural process as required under the law, which was initiated by a show cause letter, disciplinary proceedings and later termination. Counsel relied on the case of Joseph Sohelo Mariko & Another versus Pandya Mukesh t/a Relish Restaurant Cause 1237 of 2013 while submitting that the Claimants went through disciplinary hearing which was minuted after being given opportunity to express themselves in the show cause letters.
  4. Counsel submitted that the Claimants had instituted a frivolous suit and failed to demonstrate that their dismissal was wrongful and the Claimants were paid full wages.
  5. On the issue of whether the Claimants are entitled to dues sought, Counsel submitted that the Respondent have failed to prove that the Respondent acted unfairly and are not deserving of the prayers sought.

DETERMINATION

  1. The court has reviewed and considered the pleadings, testimonies, submissions and Authorities relied on by both parties and has I have come up with two main issues: -Aa. aa.
      1. WhetherWhether the Claimants’ termination from employment was unfair and unlawful
      2. WHEHWWwWhetherWhetherWheWhether the Claimants are entitled to the reliefs sought.

Whether the Claimants’ termination from employment was unfair and unlawful

  1. It is now established requirement that for termination to pass fairness test there must be both substantive and procedural fairness. This was the principle established in Walter Anuro vs Teachers Service Commission [2013] eKLR among other cases.
  2. On substantive fairness the Respondent is under duty to prove and justify the reasons for the termination as per section 47(5) of the Employment Act while the Claimants under the same section were to prove that indeed they were unfairly terminated. Section 43(2) of the Employment Act provides that the reasons for the termination must be fair and valid which the employer must have believed they existed.
  3. In this instant case, the Respondent alleged that they terminated the Claimants employment on grounds of theft of 180 meters cable of recovered cables by the Claimants where the Respondent alleged that the Claimants recovered cable in excess of what they were authorized to recover. That they colluded with a third party, who gained access to the yard without following the right process, assisted in loading the same in his private car when they arrived at its yard in Industrial area to take it to another yard in Funzi road.
  4. The Claimants on the other hand alleged that they recovered the authorized cable at DOD Kilimani of 200 meters which they loaded in the Respondent’s lorry KAT 740X and took it to the Respondent Yard in industrial area and they left to their residence. That they were never involved in any stealing and they did not know how Peter Mburu got in to possession of the cables. That what was recovered was in the Respondent’s yard intact and nothing was lost. That they used Ecotest to measure the length of the cable.
  5. This court notes that the fact that the Claimants were to recover 200 meters is not in dispute what is in dispute is whether they recovered more than the 200 meters as alleged by the Respondent. It is alleged that they recovered 399 meters instead. The Respondent from the records stated that they were beeped up that there was plan to steal the cables and followed the KAT lorry to its yard in Dar es salaam road and it is there where the cables measuring 180 meters were offloaded and loaded into a private car.
  6. To this court if the private car was interceded with 180 meters and what remained in the lorry was 219 meters, it shows that what was recovered was more than what was authorized. What this court finds curious is why the Respondent did not stop the lorry from leaving the recovery site with the excess cable than authorized if they were beeped about the same.
  7. The Respondent produced call logs between the 2nd Claimant and the driver of the private car KAU on the said day of 25th April,2017. The 2nd Claimant never denied communicating with the said Peter Mburu stating that they used to communicate on different issues. The 2nd Claimant during the hearing, when asked about the show cause requiring him to explain his communication he denied that the same required his explanation when it is clear he was needed to explain.
  8. The said Peter Mburu stated that he was instructed to take the cables to another yard on Funzi road. The security personnel more so RW1 confirmed that they saw the Claimants load the cables in the private car. What is not in dispute before this court is that cable was found in Peter Mburu’s car on its way from the Respondent’s yard and the Claimants were adversely mentioned in the whole saga. Without further evidence then this court is convinced the Claimants were involved even if the vehicles records was found not convincing before this court.
  9. The fact that cables were found in Peter Mburu car, that he explained he was called by the 2nd Claimant who allowed him access to the Respondent’s yard without following the right process proves the Claimants involvement.
  10. This therefore means that the Respondent had sufficient reasons to terminate the Claimants on the involvement of such theft where it could have incurred loss if the vehicle was not intercepted. This court relies on the finding of Mary Chemweno Kiptui v Kenya Pipeline Company Limited [2014] eKLR where the court held as follows: -

Invariably therefore, before an employer can exercise their right to terminate the contract of an employee, there must be valid reason or reasons that touch on grounds of misconduct, poor performance or physical incapacity.

  1. On procedural fairness section 41 of the Employment Act is the guiding law on this where it requires hearing and notification of the employee before termination. The employee needs to be notified, allowed to make their representations and attend disciplinary hearing accompanied by a fellow employee or union official of their choice.
  2. This court notes that even if the Claimants were guilty of gross misconduct warranting a summary dismissal the law is clear that even in such cases the employee must be heard. The Court of Appeal in Janet Nyandiko vs. Kenya Commercial Bank Limited [2017] eKLR observed as follows;

“Section 41 of the Act, enjoins the employer in mandatory terms, before terminating the employment of an employee on grounds of misconduct, poor performance or physical incapacity to explain to the employee in a language that the employee understands the reasons for which the employer is considering to terminate the employee’s employment with them. The employer is also enjoined to ensure that the employee receives the said reasons in the presence of a fellow employee or a shop floor union representative of own choice; and to hear and consider any representations which the employee may advance in response to allegations leveled against him by the employer.”

  1. In addition, the court observed in Kenya Union Of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited [2014] eKLR that: -

Section 41 of the Employment Act is couched in mandatory terms. Where an employer fails to follow these mandatory provisions, whatever outcome of the process is bound to be unfair as the affected employee has not been accorded a hearing in the presence of their union representative.

  1. In this case the Claimants were issued with show cause letters which they responded to and later called for the disciplinary hearing on the morning of the hearing on 23rd May,2017. The Respondent confirmed that they never issued the Claimants with a letter inviting them for disciplinary hearing. The Respondent witness RW2 confirmed that they never attached the investigation report, statement by Peter Mburu, DCI response or the call logs in the show cause letter. That during hearing they read parts of Mburu’s statement and the Claimants never requested for them.
  2. The Claimants on the other hand alleged that the hearing got them by surprise since they were called in the morning and they had not time to prepare. That they were never furnished with documents despite requesting for them orally. That the union representative was not of their choice.
  3. In conclusion this court is of the view that the Claimants termination was procedurally unfair hence the Claimants were unfairly terminated to that extent.

Whether the Claimants are entitled to reliefs sought.

  1. The court finds that the Claimants were unlawfully terminated on account of lack of procedural fairness. They are therefore entitled to damages for unfair termination as per section 49 of the Act. The Claimants had worked with the Respondent for over 20 years. However the respondent had lawful cause to terminate their service but botched the process by not according them procedural fairness in the process of termination. Guided by Section 49(4) of the Employment Act the court awards the Claimants 4 months’ salary as compensation for the unfair termination.
  2. In conclusion the Claimants claim succeeds with costs as follows:
      1. 4 months compensation for

unlawful dismissal……………...Kshs 261,688/= and Kshs 274,192/= respectively.

  1. It is so ordered.

Dated at Nairobi this ……… day of…………. 2024

Delivered virtually this……… day of ………….2024

Abuodha Nelson Jorum

Presiding Judge-Appeals Division

    DAVID DANIEL MUTUKU & ANOTHER VS TELKOM KENYA LIMITED DAVID DANIEL MUTUKU & ANOTHER VS TELKOM KENYA LIMITED