JACKSON KAINDI MUSAU V CHAIRMAN OF BOG OF KITHEINI SEC SCH & 2 OTHERS [2013] KEELRC 511 (KLR)
The bottom line
#A Kenyan school won on reasons for firing an employee but lost on procedure, paying notice and service pay.
What this practically means
#Executive summary
#Key legal issues
#Determination of the Claimant's salary at termination
The Court adopted the Claimant's figure of Kshs. 11,750 since the employer, who bears the statutory duty of record-keeping, produced no records and its witness did not know the salary.
Section 20 of the Employment Act requires employers to provide itemised pay statements and Section 10 places the duty of keeping employee records on the employer. The Respondents' witness admitted in cross-examination that he did not know the Claimant's salary. In the absence of employer records, the Court adopted the Claimant's unchallenged figure of Kshs. 11,750 as his monthly salary.
Whether the summary dismissal was substantively justified
The Respondents had a justifiable ground for termination based on the Claimant's record of misconduct, including reporting on duty while drunk, which the Claimant did not rebut.
Under Section 47(5) of the Employment Act, the burden of justifying the grounds for termination rests on the employer. The Respondents produced warning letters, suspension letters and Board minutes showing a prolonged record of misconduct. Though there was no evidence the Claimant received the warning letters, he did not rebut the accusations, and the Court concluded he was aware his conduct was under discussion.
Whether the dismissal was procedurally fair under Section 41 of the Employment Act
The Respondents failed to follow the correct procedure, warranting conversion of the summary dismissal into a normal termination.
Section 41 requires an employer, before terminating on grounds of misconduct, to explain the reasons to the employee in a language he understands, allow him to have a companion present, and hear and consider his representations. Although the Claimant was aware of the accusations, the Court found the Respondents did not afford him the adequate opportunity to respond required by the statute, so the summary dismissal was procedurally flawed.
Legal principles established
#- Where an employer fails to keep employment records as required by Sections 10 and 20 of the Employment Act, the Court may adopt the employee's stated salary figure.
- An employer with a justifiable ground for termination who fails to follow the correct procedure under Section 41 of the Employment Act converts a summary dismissal into a normal termination, entitling the employee to notice pay.
Court orders
#- 1.The summary dismissal is converted into a normal termination
- 2.The Claimant is awarded 1 month's salary in lieu of notice
- 3.The Claimant is awarded service pay at the rate of 15 days pay for each completed year of service
- 4.Compensation for unfair termination is declined
- 5.The claim for house allowance is dismissed
- 6.Each party to bear their own costs
- Jurisdiction invoked
- Industrial Court of Kenya jurisdiction over employment disputes under Cause 1086 of 2010; Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JACKSON KAINDI MUSAU V CHAIRMAN OF BOG OF KITHEINI SEC SCH & 2 OTHERS [2013] KEELRC 511 (KLR)", Case Analysis (2013). Cause 1086 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/511/eng@2013-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.