Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause 1083 of 2011· [2013] KEELRC 312 (KLR)

KIZITO INJILA MWENESI V BUNSON TRAVEL SERVICE LIMITED [2013] KEELRC 312 (KLR)

Industrial Court of Kenya
29 April 2013
MOMAUREEN ONYANGO
2,453 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled an employee's firing unfair because the employer had already decided to dismiss him before the hearing, awarding him over Kshs.484,000.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent from May 2005 and last serving as a Travel Consultant, was summarily terminated by letter dated 20th May 2011 effective 31st May 2011 on grounds of insubordination, lack of accountability and poor performance. He claimed unlawful, unfair and inhuman termination, deprivation of personal property, and unpaid terminal dues, seeking declarations and Kshs.619,134. The Respondent maintained the termination was for misconduct following warning letters. Evidence showed a meeting on 24th May 2011 at which the already-made termination decision was conveyed; the Claimant was given a chance to respond but said nothing. Thereafter, an unknown 'policeman' searched him, confiscated Kshs.15,000 in cash and a laptop valued at Kshs.37,440, and escorted him off the premises; the General Manager also circulated a letter to tour operators alleging his exit was due to fraud. The court held that Sections 41, 43 and 45 of the Employment Act govern lawful termination, and that Section 41 was never complied with because the decision predated any hearing, rendering the termination unfair and demeaning. The court awarded May 2011 salary of Kshs.27,500 (applying Section 10(7) burden-shifting), notice pay of Kshs.27,500, leave pay of Kshs.47,208.30, maximum compensation of 12 months' salary at Kshs.330,000, and refunds of Kshs.15,000 and Kshs.37,440. Claims for service pay were dismissed, and no finding was made on damages for malicious and inhuman treatment due to lack of submissions. Total decretal sum: Kshs.484,643.30, payable within 30 days with interest at court rates thereafter; costs to the Claimant.

Key legal issues

#
01

Procedural fairness of termination

Holding

Termination was unfair because the decision to terminate was made in advance of any hearing, breaching Section 41 of the Employment Act

Reasoning

The court found the decision to terminate was made on 20th May 2011, four days before the meeting at which reasons were given. Section 41 requires an explanation, presence of a colleague or union official, and opportunity to respond before the decision. Since the letter of termination had already been written, the Claimant's appearance of being heard was a formality, not compliance. The manner of termination - searching and escorting him out - was humiliating and unfair.

p. 3
02

Unpaid salary for May 2011

Holding

Claimant entitled to Shs.27,500 salary for May 2011

Reasoning

The Respondent admitted the salary was unpaid because the Claimant had not cleared. The Claimant's payslip showed a salary of Shs.27,500. The Respondent denied this figure in submissions but gave no correct amount; under Section 10(7) of the Employment Act the burden shifted to the employer who failed to produce written particulars.

p. 4
03

Notice pay

Holding

Entitled to one month's salary in lieu of notice, Shs.27,500

Reasoning

The termination letter offered one month's salary in lieu of notice, and the letter of appointment as well as Section 35 of the Employment Act provided for it. The court found the Claimant entitled and awarded the sum of Shs.27,500.

p. 4
04

Leave pay

Holding

Awarded Shs.47,208.30 for 51.5 untaken leave days

Reasoning

The Claimant's clearance Form showed an entitlement of 51.5 days as at 31st May 2011. The court computed the daily rate by dividing the monthly salary by 30 and multiplying by 51.5, arriving at Shs.47,208.30.

p. 4
05

Compensation for unfair termination

Holding

Maximum compensation of 12 months' salary, Shs.330,000

Reasoning

Considering the circumstances under which the Claimant was relieved of employment - the pre-made decision, the search by an unknown policeman, confiscation of property, and circulation of a letter alleging fraud - the court awarded the maximum 12 months' gross salary of Shs.27,500, totalling Shs.330,000.

p. 4
06

Refund of confiscated cash and laptop

Holding

Respondent to refund Shs.15,000 cash and Shs.37,440 laptop value

Reasoning

The Claimant pleaded and testified that the cash and laptop were confiscated. The Respondent only made a general denial, its witnesses did not deny the allegations in testimony, and written submissions only questioned the validity of the receipt. The testimony therefore stood unchallenged and was accepted.

p. 5

Legal principles established

#
  • Section 41 of the Employment Act requires an explanation of reasons, presence of a colleague or union official, and an opportunity to respond before a termination decision is made
  • Section 10(7) of the Employment Act shifts the burden of proof of terms of employment to an employer who fails to produce written particulars

Court orders

#
  1. 1.A declaration that the termination of the Claimant's employment by the Respondent was unfair and demeaning
  2. 2.A declaration that the Claimant is entitled to judgement against the Respondent in the sum of Shs.484,643.30
  3. 3.The Respondent shall pay Claimants costs of this case
  4. 4.The said decretal sum should be paid within 30 days failing which interest shall accrue at Court rates from date of judgement

Authorities

#

Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 10(7)
  • Employment ActSection 35
  • Employment ActSection 35(5)
  • Employment ActSection 35(6)
Jurisdiction invoked
Employment Act, Sections 41, 43 and 45 (unfair termination jurisdiction of the Industrial Court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "KIZITO INJILA MWENESI V BUNSON TRAVEL SERVICE LIMITED [2013] KEELRC 312 (KLR)", Case Analysis (2013). Cause 1083 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/312/eng@2013-04-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.