John Ashoya v High Grove Limited [2015] KEELRC 214 (KLR)
The bottom line
#A Mombasa court ruled an employer cannot fire a worker injured on the job without notice, a hearing, or a valid reason, awarding him Ksh 98,000.
What this practically means
#Executive summary
#Key legal issues
#Unlawful and unfair termination
The claimant's employment was unlawfully and unfairly terminated after an industrial accident, without notice, valid reason or fair procedure.
The suit was undefended; the claimant's evidence stood unrebutted. On a balance of probability the court found he was injured on duty on 10.9.2014 and barred from resuming work. The only reason was his injury, which was neither misconduct nor incapacity, and no section 41 procedure was followed - only the secretary told him his employment was over. Under section 45, the employer failed to prove valid reason and fair procedure, so termination was substantively and procedurally unfair.
Quantum of reliefs for unfair termination
One month's salary in lieu of notice (Ksh 9,800), Ksh 9,800 for 33.25 accrued leave days, and eight months' gross salary (Ksh 78,400) as compensation for unfair termination.
Having declared the termination unlawful, the court awarded statutory notice pay and accrued leave for the one year and seven months served. For compensation, the court took account of the injuries sustained in the fall, reasoning that the claimant might be unable to secure similar employment involving climbing houses for about eight months, justifying the equivalent of eight months' gross salary.
Legal principles established
#- An employer must follow the mandatory procedure under section 41 of the Employment Act - explain the reason for intended dismissal to the employee in the presence of a fellow employee or shop floor representative and allow them to be heard - before terminating on grounds of misconduct, poor performance or incapacity.
- Under section 45 of the Employment Act, termination is unfair where the employer fails to prove it was founded on a valid and fair reason and effected through a fair procedure.
Court orders
#- 1.Judgment entered for the claimant declaring termination of his employment unlawful
- 2.Award of Ksh 98,000 (comprising one month's salary in lieu of notice Ksh 9,800, Ksh 9,800 for 33.25 accrued leave days, and Ksh 78,400 as eight months' gross salary compensation for unlawful termination)
- 3.Costs of the suit to the claimant
- 4.Interest on the decretal sum
- Jurisdiction invoked
- Employment and labour relations jurisdiction (employment and Labour Relations Court Act); Employment Act invoked on the merits
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Ashoya v High Grove Limited [2015] KEELRC 214 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/214/eng@2015-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.