Simiyu Kibengo Godfrey v Private Safaris (E.A) Limited [2013] KEELRC 831 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Unfair termination
Termination was unfair because the Respondent did not afford the Claimant adequate opportunity to defend himself; compensation of 8 months' pay awarded
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.
House allowance
Claim allowed; 15% of salary treated as housing element and a loaded salary of Kshs. 16,698 adopted
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.
Leave, public holidays and overtime
Prorata leave for 2010/2011 only awarded; notice, public holidays and overtime claims failed
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.
Legal principles established
#- 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
#- 1.Award of 8 months' salary compensation for unfair termination of Kshs. 133,584
- 2.Award of house allowance for 230 months of Kshs. 500,940
- 3.Award of prorata leave for 8 months of Kshs. 7,798
- 4.Total award of Kshs. 642,322
- 5.Respondent directed to issue the Claimant with a Certificate of Service
- 6.Costs of the case awarded to the Claimant
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Industrial Court) under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Nthiga v Mundigi, MP (Cause E009 of 2023) [2024] KEELRC 1900 (KLR)[2024] KEELRC 1900 (KLR)19 Jul 2024
- Euphrasio Gitonga Mberia v County Public Service Board, Tharaka Nithi & another [2019] KEELRC 1619 (KLR)[2019] KEELRC 1619 (KLR)20 May 2019
- Simon Githinji Wahome v G.M Kariuki Hardware Limited [2018] KEELRC 716 (KLR)[2018] KEELRC 716 (KLR)31 Oct 2018followed
- Peter Kimeu Mose & 13 others v Mang Hotel & another [2015] KEELRC 940 (KLR)[2015] KEELRC 940 (KLR)19 Jun 2015applied
Cite this brief
#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.