David Kamande Kimani v General Alluminium Fabricators [2014] KEELRC 1255 (KLR)
The bottom line
#A Kenyan court awarded a dismissed worker his dues but refused extra compensation because the Employment Act did not yet cover dismissals from 2008.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to terminal dues on uncontroverted evidence
Judgment entered for the Claimant for notice pay, salary for days worked and gratuity at 15 days' salary per completed year of service
The Respondent filed no appearance or response and did not attend the hearing despite service. The court confirmed service by affidavits on record and allowed the claimant to proceed. In the absence of contrary evidence, the claimant's testimony and pleadings stood uncontroverted, establishing employment from 29th August 1990, a last salary of Shs. 10,947, and summary dismissal on 14th April 2008.
Compensation for unfair termination under Section 49(1)(c) Employment Act 2007
Refused because the Act came into force on 2nd June 2008, after the dismissal on 14th April 2008
Although the dismissal was alleged to be wrongful and unfair, the statutory compensation remedy of up to twelve months' gross salary under Section 49(1)(c) depends on the Employment Act 2007 being in operation. The dismissal predated the Act's commencement, so the claim for Shs. 131,364/- failed on retrospectivity grounds.
Legal principles established
#- The Employment Act 2007 does not apply retroactively to dismissals occurring before its commencement on 2nd June 2008
- Uncontroverted evidence of a claimant, where the respondent files no appearance or response, is sufficient to found judgment
Court orders
#- 1.Judgment entered in favour of the Claimant against the Respondent in the sum of Shs. 158,248.00, comprising Kshs. 32,831/- being 3 months' salary in lieu of notice, Shs. 5,108.60 being salary for 14 days worked in April 2008, and Shs. 120,417/- being gratuity at 15 days salary per completed year of service
- 2.The Claim for 12 months' salary as compensation for unfair termination under Section 49(1)(c) of the Employment Act 2007 refused
- 3.The Respondent to pay the Claimant's costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over claims of unlawful termination of employment; relief founded on the Employment Act 2007 (Section 49(1)(c)) considered but held inapplicable
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Kamande Kimani v General Alluminium Fabricators [2014] KEELRC 1255 (KLR)", Case Analysis (2014). Memorandum of Claim dated 20th May 2013, filed 7th June 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1255/eng@2014-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.