Kizito Savali v Marshalls East Africa Limited [2013] KEELRC 218 (KLR)
The bottom line
#A Kenyan employer who fires staff without stating reasons or holding a disciplinary hearing can be ordered to pay up to twelve months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent proved valid reasons and a fair procedure for the summary dismissal
The dismissal was unfair: no reasons were stated in the termination letter, no disciplinary hearing was conducted, and the HR Manual procedure incorporated into the contract was breached.
Section 43(1) of the Employment Act places the burden on the employer to prove reasons for termination. The termination letters gave no reasons and no disciplinary hearing was held, which the court held was prima facie evidence of lack of reasons. The HR Manual, incorporated into the appointment letter, required a disciplinary hearing and could not be verbally discarded by new management. Section 41(2) entitled the Claimant to be heard. The dismissal therefore failed both the substantive reason test under Section 45(2)(a) and the fair procedure test under Section 45(2)(c).
Whether maximum compensation under Section 49(1)(c) was warranted
Twelve months' gross salary compensation awarded because the dismissal was cruel and the Claimant contributed nothing to it.
The court found the Claimant, a Financial Controller, was removed by new management without notice, dignity, disciplinary hearing or certificate of service, and remained unemployed. He had no record of warnings and had performed well. Given these aggravating factors and the absence of any contribution by the Claimant, the court held this a suitable case for the maximum compensation of twelve months' gross salary under Section 49(1)(c).
Legal principles established
#- Reasons for termination must be stated in the letter of termination; failure to do so is prima facie evidence that no valid reasons existed.
- Terms in a Human Resource Manual incorporated into the contract of employment cannot be unilaterally repudiated by the employer.
- Where the employer fails to prove reasons for termination under Section 43(1), the termination is unfair under Section 45.
Court orders
#- 1.Judgment entered for the admitted terminal dues of Kshs.520,000/=
- 2.Respondent to pay the Claimant twelve (12) months compensation for unlawful and unfair dismissal in the sum of Kshs.2,400,000/=
- 3.Respondent to provide the Claimant with a certificate of service immediately
- 4.Total award of Kshs.2,920,000/= to the Claimant
- 5.Costs to follow the outcome of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kizito Savali v Marshalls East Africa Limited [2013] KEELRC 218 (KLR)", Case Analysis (2013). Memorandum of Claim dated 13th October, 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/218/eng@2013-08-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.