Kenya Union Of Journalists And Alied Workers v Sunday Express Newspaper Ltd [2013] KEELRC 49 (KLR)
The bottom line
#A Kenyan court awarded a dismissed News Editor Kshs.1.38 million because his employer never let him explain the allegations or present evidence.
What this practically means
#Executive summary
#Key legal issues
#Unlawful and unfair termination
The termination was substantively unlawful and procedurally unfair; the employer failed to rebut the Grievant's evidence and gave him no opportunity to explain himself.
The Respondent did not call the Managing Editor to testify; photocopies annexed to the response were not evidence. Under Section 47(5) of the Employment Act the Claimant showed the termination was wrongful and unfair contrary to Section 45(2)(a) and (c). The Grievant was not given an opportunity to explain himself over the allegations leading to dismissal.
Underpayment of salary
Claim of Kshs.960,000/= arrears proved at Kshs.40,000/= per month for two years.
The Grievant's uncontroverted evidence was that he accepted Kshs.30,000/= for two months on mutual trust with a promise of full pay and arrears, but was underpaid for the whole 24 months of employment.
Service gratuity for non-registration with NSSF
Entitled to gratuity at 15 days' salary per completed year for two years, Kshs.70,000/=, under Section 35(5) as read with (6).
The employer did not register the Grievant with NSSF during his two years of service; the statutory consequence is service pay computed at 15 days' salary for each completed year of service.
Compensation for unfair dismissal
Five months' salary, Kshs.350,000/=, awarded in lieu of reinstatement.
Reinstatement was impracticable; the court considered the relatively short service of two years, good career prospects in the media industry, and the circumstances of the dismissal in fixing compensation at five months' salary.
Legal principles established
#- Averments in a Memorandum of Response do not amount to evidence; uncontroverted sworn evidence stands
- Failure to call a witness to answer allegations against an employee justifies an adverse presumption against the employer
- Claims for mileage, night-out allowance and extra-work payments are special damages requiring specific proof
Court orders
#- 1.Kshs.350,000/= compensation for unlawful termination
- 2.Kshs.960,000/= as unpaid salary arrears
- 3.Kshs.70,000/= being service gratuity for two years
- 4.Total award of Kshs.1,380,000/=
- 5.Respondent to pay costs of the suit
- 6.Interest on the decretal amount from date of filing the suit to date of payment
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007 (Sections 45(2)(a) and (c), 47(5), 35(5) and (6))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union Of Journalists And Alied Workers v Sunday Express Newspaper Ltd [2013] KEELRC 49 (KLR)", Case Analysis (2013). Cause No 1041 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/49/eng@2013-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.