Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 265 of 2012· [2013] KEELRC 745 (KLR)

Alfonse Kioko Mutisya v Peter Mulei & Sons Limited [2013] KEELRC 745 (KLR)

Industrial Court of Kenya
3 September 2013
3,445 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that firing an employee without giving written reasons in the termination letter is unfair, even if explanations come later in court.

What this practically means

#

Executive summary

#
The claimant, employed as an Accountant Assistant on 25th October 2010 at Kshs.30,000.00 monthly, was terminated on 1st February 2012 by a letter citing only section 42(2), (3) and (4) of the Employment Act, without stating any reason. The respondent alleged gross misconduct and dishonesty, but its witnesses introduced reasons - poor performance and sharing a pornographic clip - that were never stated in the termination notice. The court held that the probationary provision relied upon could not apply after 15 months of service; absent an agreed extension, the contract became confirmed automatically and the employer was estopped from invoking the probation clause to the employee's disadvantage. The divergence between the notice and the evidence was a fatal mistake, and the termination was found procedurally and substantively unfair contrary to section 45 of the Employment Act. On remedies, the court awarded compensation equivalent to three months' pay (reduced due to lack of evidence of mitigation and the claimant's refusal to collect offered dues), one month's notice pay, service pay of 15 days per year as NSSF remittances were not linked to the claimant, one month's pay for outstanding leave (the respondent failing to produce work records), and Kshs.1,000 for the day of termination. No deduction was made for the claimant's salary advance since there was no counter-claim. Judgment was entered for the claimant with a declaration of unfair termination, costs, and an order that a certificate of service be issued within 14 days.

Key legal issues

#
01

Validity of termination based on a probationary clause after 15 months of service

Holding

The respondent misapplied section 42 of the Employment Act; the probation period of six months could not be extended beyond the statutory maximum absent agreed extension, so the contract was deemed confirmed and reliance on section 42 was unfair

Reasoning

The termination letter cited only section 42(2), (3) and (4), which govern probationary contracts. The claimant had served over 15 months against a six-month probation. In the absence of proof of an agreed extension, the contract became confirmed automatically by operation of law and the employer was estopped from invoking the probation clause to the employee's disadvantage.

p. 4
02

Whether termination was substantively unfair for failure to state reasons in the notice

Holding

The termination was unfair; the notice gave no reason, only a statutory citation, and the reasons later advanced in evidence (poor performance, misconduct) were never stated in the notice

Reasoning

The letter of termination cited section 42(2), (3) and (4) without stating any reason. In evidence, the respondent introduced different reasons - poor performance and sharing a pornographic clip - which did not feature in the notice. The court held this divergence to be a fatal mistake and contrary to section 45 of the Employment Act.

p. 5
03

Service pay where NSSF remittances are not linked to the employee

Holding

Service pay of Kshs.15,000.00 (15 days per year) awarded because the respondent's NSSF payment records were not linked to the claimant

Reasoning

The respondent's attachments showing NSSF payments bore no schedule indicating the claimant was a beneficiary of the lump sum payment. The duty rested on the respondent to confirm remittance with respect to the claimant; the payment could have related to anybody else, so service pay was due.

p. 5
04

Leave dues

Holding

One month's pay (Kshs.30,000.00) awarded for outstanding leave days as the respondent's computation was unsupported and it failed to produce work records

Reasoning

The claim for leave days was not materially challenged. The employer keeps work records and had a duty to produce them when the claimant disputed the terminal dues computation; failing that, the court awarded leave dues equivalent to one month's pay.

p. 5

Legal principles established

#
  • A notice of termination must state the reason(s) for termination unambiguously and in writing; termination for reasons not stated in the notice is unfair
  • Where a probationary period expires without confirmation, the contract becomes confirmed automatically and the employer is estopped from relying on the probation clause against the employee
  • An employer bears the burden of proving the reason for termination is valid and fair
  • Where NSSF dues are not proved remitted for an employee, the court will award service pay of 15 days' pay per completed year of service
  • Employment records are kept by the employer, who bears the duty to produce them in court when terminal dues are disputed

Court orders

#
  1. 1.Declaration that the termination of the claimant by the respondent was unfair
  2. 2.Compensation for unfair termination of Kshs.90,000.00 (equivalent to 3 months' pay)
  3. 3.Leave dues awarded at Kshs.30,000.00
  4. 4.Service pay awarded at Kshs.15,000.00
  5. 5.Leave dues amounting to Kshs.30,000.00
  6. 6.Pay for 1st February 2010 amounting to Kshs.1,000.00
  7. 7.Costs of the suit to the claimant
  8. 8.Certificate of Service to be issued within 14 days, sent to the claimant's advocates and a copy to the claimant's last personal address

Authorities

#

Legislation

  • Employment Act, 2007section 42(2), (3) and (4)
  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 35(4)(a)
  • Employment Act, 2007section 35(6)
  • Employment Act, 2007section 45
  • Employment Act, 2007section 46
Jurisdiction invoked
Jurisdiction under the Industrial Court over employment and labour relations claims (Employment Act, 2007)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Alfonse Kioko Mutisya v Peter Mulei & Sons Limited [2013] KEELRC 745 (KLR)", Case Analysis (2013). Cause No. 265 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/745/eng@2013-09-03

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