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ELRCPartially AllowedCause No 1683 of 2011· [2013] KEELRC 831 (KLR)

Simiyu Kibengo Godfrey v Private Safaris (E.A) Limited [2013] KEELRC 831 (KLR)

Industrial Court of Kenya
7 October 2013
1,592 words in judgment
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The bottom line

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A Kenyan court ruled that firing an employee the same day he gave written explanations, without a proper hearing, was unfair and awarded him over KShs 642,000 plus costs.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 19th June 1991 as a Driver/Guide and earning Kshs. 14,520 at termination, claimed unfair termination and terminal dues following the termination of his employment on 3rd March 2011. The Respondent asserted misconduct on two counts - privately booking a Balloon Safari for clients and failing to make a scheduled airport transfer - and contended the Claimant was heard and paid his dues. The Court, applying Section 45(2) of the Employment Act, 2007, held that termination requires both substantive and procedural fairness. Although the Claimant submitted written explanations on 3rd March 2011, he was terminated the same day with no evidence the Respondent considered them, and no show cause letter or disciplinary meeting preceded the termination. Relying on Bernard Mutugi Daniel v Lenana Mount Hotel Limited, the Court found the termination unfair and awarded 8 months' salary in compensation. On house allowance, the Court found the appointment letter provided a 15% housing element, that discrepancies with the pay slip were unexplained, and that being accommodated at lodges in a non-accompanied environment does not amount to being housed under Section 31(1). House allowance for 230 months was awarded, the claim being a continuing injury under Section 90. The Court awarded only prorata leave for 2010/2011 and rejected the claims for notice pay, public holidays and overtime as unproved. Total award: Kshs. 642,322, plus a Certificate of Service and costs to the Claimant.

Key legal issues

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01

Unfair termination

Holding

Termination was unfair because the Respondent did not afford the Claimant adequate opportunity to defend himself; compensation of 8 months' pay awarded

Reasoning

Section 45(2) of the Employment Act requires the employer to prove both valid reason and fair procedure. The Claimant gave written explanations on 3rd March 2011 and was terminated the same day, with no evidence the Respondent considered the explanations. Citing Bernard Mutugi Daniel v Lenana Mount Hotel, the Court held the employee must be afforded every opportunity to defend themselves before disciplinary action.

p. 3
02

House allowance

Holding

Claim allowed; 15% of salary treated as housing element and a loaded salary of Kshs. 16,698 adopted

Reasoning

The appointment letter provided for a consolidated salary with 15% housing element, but discrepancies between the letter and the pay slip were unexplained and no pay statement was produced under Section 20. Being housed at lodges in a Game Reserve does not amount to being housed by the employer under Section 31(1). The claim was a continuing injury under Section 90 and thus within time.

p. 3
03

Leave, public holidays and overtime

Holding

Prorata leave for 2010/2011 only awarded; notice, public holidays and overtime claims failed

Reasoning

The Respondent produced leave application forms, though incomplete, and the Court adopted the form dated 20th April 2010 as indicative of the Claimant's leave status. On that basis only prorata leave for the 2010/2011 period was awarded. The notice claim lacked basis and the public holidays and overtime claims were not proved on evidence.

p. 4

Legal principles established

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  • For a termination to be fair there must be both substantive and procedural fairness
  • An employee must be given an opportunity to respond to allegations before termination
  • An employee accommodated by the employer in a non-accompanied environment such as a Game Reserve or National Park is not housed within the meaning of Section 31(1) of the Employment Act
  • Failure to pay house allowance is a continuing injury under Section 90 of the Employment Act

Court orders

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  1. 1.Award of 8 months' salary compensation for unfair termination of Kshs. 133,584
  2. 2.Award of house allowance for 230 months of Kshs. 500,940
  3. 3.Award of prorata leave for 8 months of Kshs. 7,798
  4. 4.Total award of Kshs. 642,322
  5. 5.Respondent directed to issue the Claimant with a Certificate of Service
  6. 6.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 43(2)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 20
  • Employment Act, 2007Section 31(1)
  • Employment Act, 2007Section 90
  • Constitution of Kenya, 2010Article 41

Cases cited (1)

  • Bernard Mutugi Daniel Vs Lenana Mount Hotel Limited
    Industrial Court Cause No. 1423 of 2012
Jurisdiction invoked
Employment and labour relations jurisdiction (Industrial Court) under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Simiyu Kibengo Godfrey v Private Safaris (E.A) Limited [2013] KEELRC 831 (KLR)", Case Analysis (2013). Cause No 1683 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/831/eng@2013-10-07

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