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ELRCPartially AllowedCause No. 576 of 2014· [2014] KEELRC 1488 (KLR)

Erastus Kiragu Kamau v Ark Construction Limited [2014] KEELRC 1488 (KLR)

Industrial Court of Kenya
16 December 2014
773 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 found the dismissal unlawful because the employer skipped written notice, but the employee still lost most claims by failing to prove them.

What this practically means

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Executive summary

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The claimant, a Quantity Surveyor, sued Ark Construction Limited alleging unfair, illegal and unreasonable termination of his employment on 6th March 2014, claiming ten months' salary in lieu of notice, service pay for four years and nine months, unpaid leave, and damages for unfair termination. The respondent denied the claim, asserting the claimant was employed in September 2009, was verbally warned for professional misconduct and absented himself, and left employment of his own volition without notice; it maintained all dues were paid and sought dismissal with costs. The parties agreed to proceed by written submissions. The court found the parties' submissions unclear as to whether the claimant absconded or was terminated, but held that the respondent's failure to issue written warnings or a termination letter contravened section 41 of the Employment Act, rendering the termination unlawful. However, invoking section 47(5), the court held that the burden of proving unfair termination rests on the employee, and the claimant's submissions failed to establish entitlement to the reliefs sought, merely showing that a separation occurred. The court granted only one month's salary in lieu of notice (Kshs.163,418.00), based on the respondent's admission that no written warnings or termination letter were issued, and dismissed the remaining prayers. Each party was ordered to bear its own costs, with the court deploring the casual manner in which both parties approached the case.

Key legal issues

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01

Whether termination was unlawful for want of written notice under section 41 of the Employment Act

Holding

Yes - the termination was unlawful because no written notification was given

Reasoning

The respondent's assertions that the claimant was verbally warned and that attempts were made to contact him were not documented. Section 41 requires written notification of an intention to terminate employment. Since this was not done, the termination of the claimant's employment was unlawful.

p. 2
02

Whether the claimant proved entitlement to the reliefs sought

Holding

No, except notice pay

Reasoning

The claimant proceeded by written submissions but failed to make elaborate submissions explaining his entitlement to each relief. Section 47(5) places the burden of proving unfair termination on the employee. The submissions only established that a separation occurred, not how it occurred. Only one month's salary in lieu of notice was granted, based on the respondent's admission that no written warnings or termination letter were issued.

p. 2

Legal principles established

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  • Where a respondent does not issue written warnings or a letter of termination as required under section 41 of the Employment Act, a termination of employment is unlawful.
  • The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds rests on the employer.
  • A party who elects to proceed by written submissions must make elaborate submissions on each relief sought, explaining entitlement.

Court orders

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  1. 1.The claimant is granted one month's salary in lieu of notice in the sum of Kshs.163,418.00 based on the pay slip for June 2014 annexed to the Memorandum of claim
  2. 2.The rest of the prayers (service pay, unpaid leave, damages for unfair termination) are dismissed for non-proof
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 47(5)
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act, Industrial Court first-instance jurisdiction

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, "Erastus Kiragu Kamau v Ark Construction Limited [2014] KEELRC 1488 (KLR)", Case Analysis (2014). Cause No. 576 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1488/eng@2014-12-16

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