Bernayo Tsiambo Mbayachi v Mukoya Gas Stores [2014] KEELRC 564 (KLR)
The bottom line
#A Kenyan court ruled that firing a six-year employee without notice or a hearing was unfair, awarding him compensation, severance pay, notice pay and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was fair
The dismissal violated Sections 45(1) and (2) of the Employment Act - no valid reason and no fair procedure
The Claimant established on a balance of probability that he was summarily dismissed on 2nd August 2011. The Respondent failed to justify the dismissal under Section 37(5). No notice or hearing preceded the termination, and allegations of absconding were not supported by any letter. The co-worker's evidence that the Claimant threw keys was unconvincing since the boss had already told him to go home.
Compensation for unfair dismissal
10 months' salary awarded as compensation (Kshs. 100,000)
The Claimant had served six years diligently. The sudden nature of the termination left him unprepared to mitigate its effects. He suffered eviction from his house, his brothers were dismissed for supporting him, and he was not issued a certificate of service to enable him secure alternative work quickly.
Severance pay entitlement
Claimant entitled to severance pay at 15 days' salary per completed year of service
The Claimant worked for six years and was not registered with NSSF. The Court applied the practice and guideline derived from Section 40 of the Employment Act, pegging severance at 15 days' salary for each completed year, allowing the claimed Kshs. 30,000.
Legal principles established
#- An employer bears the burden of justifying a summary dismissal under Section 37(5) of the Employment Act.
- Severance pay is pegged at 15 days salary for each completed year of service, derived from Section 40 of the Employment Act.
- Where an employer is bound by law to keep leave records and fails to produce them, the court may draw adverse inferences, but may still give the employer benefit of doubt where other records support leave being taken.
Court orders
#- 1.Respondent to pay compensation for unfair dismissal of Kshs. 100,000
- 2.Respondent to pay one month salary in lieu of notice of Kshs. 10,000
- 3.Respondent to pay severance pay of Kshs. 30,000
- 4.Total award of Kshs. 140,000 with interest at court rates from the date of judgment to payment in full
- 5.Respondent to issue a certificate of service to the Claimant within 10 days from date of judgment
- 6.Respondent to pay the costs of the suit
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (Employment Act claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bernayo Tsiambo Mbayachi v Mukoya Gas Stores [2014] KEELRC 564 (KLR)", Case Analysis (2014). Statement of claim dated 7th May 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/564/eng@2014-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.