On the termination process in a summary dismissal: The case of Mukabi v Program for Appropriate Technology in Health (PATH) Kenya [2025] KEELRC 1659 (KLR)

Background:

On the termination process in summary dismissal, in Mukabi v Program for Appropriate Technology in Health (PATH) Kenya [2025] KEELRC 1659 (KLR), the employee was issued a show cause letter and invited to a disciplinary hearing in the same letter. The court was of the view that the invitation to a disciplinary hearing in the show cause letter indicated a pre-meditated position by the Respondent. It was held that the termination process was flawed because it was perceived that the Claimant was guilty despite the presentation in the show cause letter. On this basis, the court found that the termination was unfair and awarded the Claimant compensation.  

In the case, the court critically reviewed the termination process in a summary dismissal. The employer (Respondent) issued the employee (Claimant) a show cause letter that, in the very same document, also extended an invitation to a disciplinary hearing. The court viewed this as indicative of a pre-meditated conclusion of guilt on the part of the employer, suggesting the decision to terminate had already been made even before the hearing. Consequently, the court held that this flawed process rendered the termination unfair, leading to an award of compensation to the Claimant. The case underscores the necessity of a truly impartial and unprejudiced disciplinary process, separate from the initial notice to show cause.

Brief Facts of the case: 

 The case provides a crucial precedent regarding procedural fairness in summary dismissals under Kenyan employment law. It emphasizes that while an employer has the right to summarily dismiss an employee for gross misconduct (as defined under Section 44 of the Employment Act, 2007), the process leading to such dismissal must be scrupulously fair and unbiased.

The Court's Holding and Implications:
The Employment and Labour Relations Court (ELRC) found that this procedural defect rendered the termination unfair, even if the employer might have had substantive reasons for dismissal. The court underscored that procedural fairness is paramount and that an employer must demonstrate that they genuinely considered the employee's representations before making a decision. Because the process was perceived as already having found the Claimant guilty, the termination was deemed procedurally unfair, leading to an award of compensation.

Key Takeaways for Employers in Kenya:
Separation of Stages: It is crucial to maintain a clear distinction between the "show cause" stage and the "disciplinary hearing" stage.

A show cause letter should invite a written response from the employee first.
Only after evaluating the employee's response to the show cause letter should the employer decide whether a formal disciplinary hearing is necessary. If the response is satisfactory, the matter might be closed without a hearing. If unsatisfactory, then an invitation to a hearing should be issued separately.
Genuine Opportunity to be Heard: The entire disciplinary process must provide a genuine and impartial opportunity for the employee to defend themselves, present their side of the story, and have their representations genuinely considered before a final decision is made.
Avoid Pre-judgment: Employers must avoid any action that suggests a pre-determined outcome or a presumption of guilt before the full disciplinary process has been concluded.

This case serves as a stern reminder that adhering to procedural fairness is as vital as having valid reasons for termination in Kenyan employment law. Failure to do so can lead to a finding of unfair termination, regardless of the alleged misconduct.

 Full case available Here