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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim lodged 24 December 2013)· [2014] KEELRC 1103 (KLR)

Kazungu Ngari Yaa v Mistry V. Naran Mulji & Co [2014] KEELRC 1103 (KLR)

Employment and Labour Relations Court
27 June 2014
1,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employee's dismissal was unfair because the employer gave no written notice, no hearing, and never proved its reasons.

What this practically means

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Executive summary

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The Claimant, represented by J.K. Mwarandu & Co. Advocates, lodged a Memorandum of Claim on 24 December 2013 against the Respondent alleging non-payment of salaries, leave and unlawful termination of employment. The Respondent was served with summons and hearing notice but neither filed a Response nor attended the hearing, so the Cause proceeded undefended and the Claimant's uncontroverted evidence was accepted. The Claimant was employed from 1986, initially as a shamba boy for 9 years and later promoted to security guard earning Kshs 9,000 per month. By letter dated 6 August 2011 his employment was terminated on grounds of inefficiency. The Court framed two issues: whether the termination was unfair, and the appropriate remedies. It held the termination unfair on three counts: no written notice was given as required by section 35(1)(c); no hearing was accorded as required by section 41 since inefficiency was a performance ground; and the employer failed to discharge its statutory duty under sections 43, 45 and 47(5) to prove the reasons valid and fair, making the termination both procedurally and substantively unfair. On remedies the Court awarded one month's pay in lieu of notice (Kshs 9,000), six days' wages for August 2011 (Kshs 2,076), scaling down the Kshs 15,000 claimed for lack of evidential basis, and service pay computed at 15 days per completed year over 25 years (Kshs 129,807), treating the 'years worked' claim as service pay under section 35(5). Total award: Kshs 140,883. There was no order as to costs. The Court also observed the Memorandum of Claim was inelegantly drafted and prosecuted dilatorily. Judgment delivered in Mombasa on 27 June 2014 by Radido Stephen, Judge.

Key legal issues

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01

Whether termination was procedurally unfair for lack of notice

Holding

Termination unfair; monthly-paid employee entitled to written notice under section 35(1)(c) and none was given

Reasoning

The Claimant was paid monthly, attracting the statutory right to written notice under section 35(1)(c) of the Employment Act. There was no material before the Court suggesting notice was given. In an undefended cause, the Claimant's uncontroverted testimony stood unchallenged, establishing unfairness on this ground.

p. 2
02

Whether termination was procedurally unfair for lack of a hearing

Holding

Procedurally unfair; inefficiency is a performance ground requiring a hearing under section 41

Reasoning

The termination letter cited inefficiency, a performance-based ground. Section 41 obliges an employer to hear an employee before terminating on grounds of misconduct, poor performance or physical incapacity. No evidence showed a hearing was granted, so the termination was procedurally unfair.

p. 2
03

Whether the reason for termination was proved valid and fair

Holding

Substantively unfair; the employer failed to discharge the statutory burden under sections 43, 45 and 47(5)

Reasoning

Sections 43, 45 and 47(5) place the burden on the employer to prove the reasons for termination and their validity and fairness. By not filing a Response or attending the hearing, the Respondent adduced nothing, so the Court concluded the reasons were not proved valid and fair, rendering the termination substantively unfair.

p. 2
04

Appropriate remedies for unfair termination

Holding

One month's pay in lieu of notice (Kshs 9,000), 6 days' wages for August 2011 (Kshs 2,076) and service pay for 25 years (Kshs 129,807), totalling Kshs 140,883

Reasoning

Notice pay flowed from sections 35 and 36. The August 2011 claim was scaled down to 6 days at the proven salary of Kshs 9,000 monthly. The 'years worked' claim was treated as service pay under section 35(5), computed at 15 days per year of service over 25 years using the daily wage formula.

p. 3

Legal principles established

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  • An employee paid monthly is entitled to written notice of termination under section 35(1)(c) of the Employment Act; failure to give notice renders termination unfair
  • Where termination is for poor performance or inefficiency, section 41 obliges the employer to grant the employee a hearing before terminating
  • The employer bears the statutory duty to prove and justify the reasons for termination under sections 43, 45 and 47(5); an undefended claim means the reasons are not proved valid and fair
  • Service pay is calculated at 15 days pay for each completed year of service, using basic salary plus housing allowance divided by twenty six to get the daily wage

Court orders

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  1. 1.The Respondent to pay the Claimant Kshs 9,000/- being one month wages in lieu of notice
  2. 2.The Respondent to pay the Claimant Kshs 2,076/- being 6 days wages for August 2011
  3. 3.The Respondent to pay the Claimant Kshs 129,807/- being service pay
  4. 4.Total award of Kshs 140,883/-
  5. 5.No order as to costs

Authorities

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Legislation

  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 35
  • Employment Act, 2007section 35(5)
  • Employment Act, 2007section 36
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kazungu Ngari Yaa v Mistry V. Naran Mulji & Co [2014] KEELRC 1103 (KLR)", Case Analysis (2014). Not stated in judgment (Memorandum of Claim lodged 24 December 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1103/eng@2014-06-27

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