Joseph Kimunya v Salt Manufacturers (K) Ltd [2014] KEELRC 1137 (KLR)
The bottom line
#A Kenyan employer who fires a worker without notice, a hearing, or a proven reason must pay maximum compensation of twelve months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair and unlawful
Termination was unfair and unlawful: no notice or hearing was given and no genuine reason was established
Section 41 of the Employment Act, 2007 requires notice and a hearing before termination. The respondent gave neither. The alleged reason that the claimant stole fuel was not established and no genuine reason was advanced at the time of termination. The manner of termination, including assault and humiliation of the claimant by the General Manager, was a serious aggravating circumstance justifying maximum compensation of 12 months' gross salary.
Whether the claimant was entitled to notice pay
Not entitled, as notice pay of Kshs.10,000.00 had already been paid
RW2, the respondent's accountant, gave evidence that the terminal dues paid to the claimant of Kshs.19,377.00 included Kshs.10,000.00 as pay in lieu of notice. The court accepted this evidence and found the claimant not entitled to a further award of notice pay as prayed for in the memorandum of claim.
Whether the claimant was entitled to service pay
Not entitled because he was a member of the National Social Security Fund
The claimant was a registered member of the National Social Security Fund. Section 35(5) of the Employment Act, 2007 bars service pay in such circumstances, as submitted by the respondent. The claim for service pay at 1/12 for 6 years of service amounting to Kshs.60,000.00 therefore failed.
Legal principles established
#- An employer must give notice and a hearing before termination as provided for in section 41 of the Employment Act, 2007
- An employer bears responsibility for establishing a genuine and valid reason for termination
- Membership of the National Social Security Fund bars a claim for service pay under section 35(5) of the Employment Act, 2007
Court orders
#- 1.A declaration that the termination of the claimant's employment by the respondent was unfair
- 2.The respondent to pay the claimant Kshs.120,000.00 by 1.8.2014, failing which interest at court rates from the date of judgment till full payment
- 3.The respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kimunya v Salt Manufacturers (K) Ltd [2014] KEELRC 1137 (KLR)", Case Analysis (2014). Cause No 301 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1137/eng@2014-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.