ELIZABETH NGINA v EAST AFRICA SAFARI AIR EXPRESS LTD [2013] KEELRC 478 (KLR)
The bottom line
#A Kenyan court ruled that firing an employee verbally is unfair—employers must issue written termination notices or risk paying damages and costs.
What this practically means
#Executive summary
#Key legal issues
#Requirement of written notice of termination
Termination was required to be in writing under Section 35(1)(b) of the Employment Act and the contract; no written notice was issued, rendering the verbal dismissal unfair
Section 35(1)(b) requires notice in writing for contracts paid periodically. The written notice must state reasons, enabling assessment of fairness. Both parties confirmed no written termination notice was issued, and the respondent did not exercise its contractual right of instant dismissal in writing for any fundamental breach.
Alleged abscondment as basis for summary dismissal
Though Section 44(4)(a) permits summary dismissal for absence without leave, the respondent took no action on the alleged abscondment and produced no attendance records
The employer bears records of staff presence. The respondent pleaded abscondment from 2nd May 2012 but adduced no evidence of any sanction, inquiry, or correspondence. The claimant's credible evidence of reporting to duty and being directed to the head office stood uncontroverted, so the abscondment plea failed.
Service pay under Section 35(5) of the Employment Act
Service pay claim failed because the claimant was an NSSF contributor, excluded by Section 35(5)
The pay slip showed NSSF and NHIF deductions. Section 35(5) excludes employees who are members of NSSF or a pension scheme from entitlement to service pay on termination, so the claim could not succeed despite six years of service.
Accrued untaken leave
The court awarded leave for 2½ years (2010-2012) at 21 days per year, Kshs.62,500.00
The claimant testified her leave requests were verbally declined due to staff shortage since 2010. The burden rested on the respondent to prove leave was taken or forfeited, which it did not discharge, having opted not to call evidence.
Legal principles established
#- Termination of employment, whether on notice or by summary dismissal, must be in writing
- Without a written notice of termination stating reasons, the court cannot assess the fairness of the termination and relies only on the evidence before it
- The duty to keep staff attendance records rests on the employer; in the absence of such records the court decides in the employee's favour on presence at work
- An employer who alleges abscondment must take some action (such as notice to show cause or dismissal in writing) to benefit from that plea
Court orders
#- 1.Declaration that the claimant's termination was unfair
- 2.Compensation for unfair termination of Kshs.25,000.00
- 3.Pay in lieu of notice of Kshs.25,000.00
- 4.Unpaid dues for May 2012 of Kshs.1,667.00
- 5.Unpaid leave of Kshs.62,500.00 (total Kshs.114,167.00)
- 6.Costs of the suit to the claimant
- 7.Respondent directed to issue a Certificate of Service to the claimant
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Employment Act (Industrial Court cause)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Daniel Juma v Bob Morgan Services Limited [2016] KEELRC 1563 (KLR)[2016] KEELRC 1563 (KLR)4 Feb 2016
- Johnson Mwangomba Leja v Bamburi Cement Limited [2015] KEELRC 1116 (KLR)[2015] KEELRC 1116 (KLR)13 May 2015
Cite this brief
#Cite this brief
Caselaw, "ELIZABETH NGINA v EAST AFRICA SAFARI AIR EXPRESS LTD [2013] KEELRC 478 (KLR)", Case Analysis (2013). Cause 1098 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/478/eng@2013-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.