IRENE NASERIAN KARBOLO V KENYA AIDS NGOS CONSORTIUM [2012] KEELRC 114 (KLR)
The bottom line
#Kenya's Industrial Court ruled that an employer who cannot prove the reason for firing you owes you compensation, here nearly Ksh.900,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was fair or unfair
The termination was unfair because the alleged reason (end of the Child Rights Project amounting to redundancy) was not proved, the office held by the Claimant having never been shown to be abolished, and the redundancy procedure under Section 40 was not followed
The court held that if the reason proved it would amount to redundancy, requiring proof that the office was abolished and compliance with Section 40 procedure including notice to the employee and Labour Officer and fifteen days pay per year of service. The Respondent failed to prove the reason under Section 43, so the termination was unfair under Section 45 and the procedure invoked was also unfair.
Whether the verifying affidavit referring to the Claimant as 'plaintiff' was defective
The affidavit was not defective; 'plaintiff' and 'claimant' are substantially the same, and a defective affidavit does not invalidate the statement of claim
The court consulted Black's Law Dictionary definitions, noted the Claimant's identity was not in doubt and that objections to pleadings should be raised early. Guided by Article 159(2)(d) and Section 20(1) of the Industrial Court Act, it held the objection lacked merit as justice must be administered without undue regard to procedural technicalities.
Remedies for unfair termination
Claimant awarded one month pay in lieu of notice (Ksh.52,900), June 2011 salary (Ksh.52,900) and maximum twelve months' gross salary compensation (Ksh.634,800) under Section 49(1)(c), service pay refused
The contract contained no notice provision, so 28 days' statutory notice applied; the court found on the balance of probabilities that notice was served on 6 June 2011. No mitigating factors were shown to reduce compensation below the twelve months maximum. Service pay failed due to NSSF membership under Section 35(6)(d).
Claim of discrimination arising from delayed May 2011 salary
No constitutional discrimination established, but the late isolated payment constituted discrimination under Section 5(2) of the Employment Act and an unfair labour practice under Article 41(1); awarded three months' salary (Ksh.158,700)
The Claimant failed to pinpoint any of the constitutional grounds of discrimination under Article 27(5). However, the Respondent's witness admitted the May 2011 salary was paid late and outside the usual practice, which the court found to be a discriminatory employment practice under Section 5(2) and an unfair labour practice under Article 41(1) of the Constitution.
Legal principles established
#- A crucial element of redundancy is the manifest and effective abolition of the office held by the employee; mere redefinition of duties or desire to change the office holder does not constitute redundancy
- Under Section 43 of the Employment Act the employer bears the burden of proving the reason or reasons for termination; failure to do so renders the termination unfair under Section 45
- A defective verifying affidavit does not invalidate a statement of claim; procedural technicalities should not impede justice
- Statutory compensation under Section 49(1)(c) of the Employment Act overrides the common law position barring general damages in termination suits
- Isolating an employee from an employer's general salary payment policies and practices amounts to an unfair labour practice contravening Article 41(1) of the Constitution
Court orders
#- 1.A declaration that the termination of the Claimant's employment by the Respondent was illegal, unjustified and unfair
- 2.Payment to the Claimant of a sum of Ksh.899,300/= plus interest at court rates from the date of judgment till full payment
- 3.Payment to the Claimant of 75% of the costs of this cause
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution; Industrial Court Act, 2011, Section 12(3)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "IRENE NASERIAN KARBOLO V KENYA AIDS NGOS CONSORTIUM [2012] KEELRC 114 (KLR)", Case Analysis (2012). Cause No 1937 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/114/eng@2012-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.