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ELRCPartially AllowedIndustrial Court Cause (number not stated in judgment)· [2014] KEELRC 1108 (KLR)

Robert Kennedy Moi v Attorney General & another [2014] KEELRC 1108 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
10 June 2014
MOMaureen Onyango
2,664 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a sacking without a proper hearing is unfair, awarding an employee up to 12 months' salary as compensation.

What this practically means

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Executive summary

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The Claimant, Robert Kennedy Moi, sued for unfair and unlawful termination of his employment as District Project Coordinator with the Western Kenya Community Driven Development and Food Mitigation Project, seeking unpaid salary, salary for the unexpired contract period, gratuity at 31%, and general damages. He was employed on 1st January 2008 for a term of 8 years but his services were terminated on 28th May 2010 after a series of disciplinary episodes, including suspension as a bank signatory, extension of probation, a surcharge, show cause letters and two suspensions. The court adopted the issues framed in the Claimant's submissions: whether the termination was justifiable, fair and lawful; whether the correct procedure was followed; entitlement to the prayers and quantum; and costs. The court held that the termination letter gave no reasons and did not refer to any hearing, oral or otherwise, or to the Claimant's representations, so no hearing was given. The termination was therefore unfair and in breach of Sections 41 and 45 of the Employment Act. The Claimant was awarded one month's salary in lieu of notice (Shs. 125,453), salary withheld during the 8-month suspension (Kshs. 1,003,624) and maximum compensation of 12 months' gross salary (Shs. 1,505,436). Claims for the unexpired contract period and gratuity were dismissed: the law does not provide for anticipatory income and the contract contained no gratuity provision. The Respondent was ordered to pay costs and interest at court rates from the date of judgment.

Key legal issues

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01

Whether the termination was substantively and procedurally fair under Sections 41, 43 and 45 of the Employment Act

Holding

The termination was unfair; the Respondent did not comply with the Section 41 hearing procedure and failed fair procedure under Section 45.

Reasoning

The termination letter gave no reasons, referred only to the suspension letter, and did not mention any hearing or the Claimant's representations in response to the show cause and suspension letters, from which the court inferred no hearing was given.

p. 4
02

Whether the Claimant was entitled to general damages/compensation and other terminal dues

Holding

The Claimant was awarded one month's salary in lieu of notice, salary withheld during the 8-month suspension, and maximum compensation of 12 months' gross salary under Section 49(1).

Reasoning

Having served 29 months with legitimate expectations to serve until 2015, and having suffered suspension without pay for 8 months, confinement to duty station, financial embarrassment and anguish, maximum compensation of 12 months' gross salary was considered reasonable.

p. 5
03

Whether salary for the unexpired contract period and gratuity were payable

Holding

Both claims were dismissed; unexpired salary is anticipatory income, and gratuity was neither provided for in the contract nor payable under any written law.

Reasoning

Section 49(4)(e) obliges employees to mitigate losses; an able-bodied claimant was expected to move on after termination. The contract made no provision for gratuity and none was payable under applicable written law, so the prayer was unproved.

p. 5

Legal principles established

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  • An employer must, before terminating employment, explain the reasons to the employee in the presence of a union official or fellow employee, hear the employee and consider representations before termination (Section 41, Employment Act).
  • A termination letter that gives no reasons and does not refer to any hearing, oral or otherwise, indicates that no hearing was given, rendering the termination unfair.
  • Salary for the unexpired period of a contract is not payable because the law does not recognise anticipatory income and employees must mitigate their losses.

Court orders

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  1. 1.1 month's salary in lieu of notice in the sum of Shs. 125,453
  2. 2.Payment of salary withheld during the period of suspension, a period of 8 months, being Kshs. 1,003,624
  3. 3.Maximum compensation of 12 months' gross salary in the sum of Shs. 1,505,436 for unfair termination
  4. 4.Claim for payment of salary for the unexpired period of the contract dismissed
  5. 5.Claim for gratuity at 31% dismissed as not proved
  6. 6.Claimant to be paid costs of the claim
  7. 7.Respondent to pay interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 44(3) and 44(4)
  • Employment ActSection 49(1)
  • Employment ActSection 49(4)(d) and 49(4)(e)

Cases cited (14)

  • Bartholomew Wanyama V Moses Gitari & another
    Industrial Court Cause 973 of 2011
  • Sister Bernadette Muthina & 7 others V St. Mary's Mission Hospital & Others
    Industrial Court Cause 538 of 2001
  • John Kakai V Daystar University
    Industrial Court Cause 977 of 2010
  • David Hannington Omari V KPLC
    Industrial Court Cause 774 (N) of 2009
  • Bernard Orina Omolo V PSC
    Cause No. 96(N) of 2009
  • KNEC and Republic Ex parte CA 127 of 2009
  • Miguna Miguna V Attorney General
    Industrial Court Cause No. 473 of 2011
  • Kenya Revenue Authority V Menginya Salim Murgani
    CA 109 of 2009
  • Local Government Board V Arlidge
    (1915) AC 120
  • Selvarajan V Race Relations Board
    (1975) 1 WLR 1686
  • R V Immigration Appeal Tribunal ex parte
    (1988) 1 WLR 477
  • D.K. Njagi Marete V Teachers Service Commission
    [2013] eKLR
  • Menginya Salim Murgani V Kenya Revenue Authority
    High Court Civil Case No. 1139 of 2002
  • Olgha Auma Adede V New Kenya Co-operative Creameries Ltd
    Industrial Court Cause No 87 of 2011
Jurisdiction invoked
Employment and labour relations dispute heard under the Employment Act (Sections 41, 43, 45 and 49)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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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, "Robert Kennedy Moi v Attorney General & another [2014] KEELRC 1108 (KLR)", Case Analysis (2014). Industrial Court Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1108/eng@2014-06-10

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