Timothy Njonjo Nyambura v Kabete Diary Co-op Ltd [2015] KEELRC 290 (KLR)
The bottom line
#A Kenyan court ruled an employee's dismissal unfair because he was never given a hearing, and awarded him compensation plus severance pay.
What this practically means
#Executive summary
#Key legal issues
#Fair procedure before summary dismissal
The summary dismissal was unlawful for want of a valid reason established through fair procedure; the Claimant was entitled to notice pay and compensation under Section 49(4).
The Respondent did not issue a statement of charge or a show-cause letter, and the Claimant was not heard before the Board decided to dismiss him. This offended Sections 41, 43, 45 and 47 of the Employment Act. Although the Claimant did not have a clean work record, he lost his job without due process. The court awarded four months' salary as compensation under Section 49(4).
Entitlement to severance pay
Claimant entitled to severance pay for four years of service in the sum of Kshs.55,000 as pleaded entitlement, no NSSF registration or remittances proved.
Severance pay is payable where the contract provides for it or where the employee was not registered with NSSF and no remittances were made. Once the claim is made, the onus shifts to the employer to disprove it. There was no evidence of NSSF registration or contributions, so the Claimant established entitlement.
Pleading by supplementary statement of claim
A supplementary statement of claim is unknown under the Employment and Labour Relations (Procedure) Rules 2010 and was struck off as an abuse of process.
The Claimant should have amended the memorandum of claim instead of filing a supplementary statement of claim, a document unknown to the Rules. The court struck it off, which removed the supplementary heads of relief (12 months' salary, deductions and telephone allowance) from consideration.
Unsubstantiated claims (public holidays, off days, leave travelling allowance)
These claims were dismissed for want of proof.
The Claimant produced no substantiation for the claims for working public holidays and off days, or for leave travelling allowance, and both were dismissed. The notice pay claim was limited to one month by statute since the dismissal issue turned on the summary dismissal finding.
Legal principles established
#- The claimant bears the burden of proving particulars of claim on a balance of probability in employment claims.
- Severance pay is payable where the employment contract so provides or where the employee was not registered with NSSF; once claimed, the onus shifts to the employer to prove otherwise.
- Summary dismissal without a statement of charge, notice to show cause and a hearing violates Sections 41, 43, 45 and 47 of the Employment Act and is unlawful.
Court orders
#- 1.Kshs.100,000 compensation for unfair dismissal (4 months salary)
- 2.One (1) month salary in lieu of notice Kshs.25,000
- 3.Thirteen (13) days salary for August 2010 Kshs.10,833
- 4.Payment in lieu of leave Kshs.35,000
- 5.Total award Kshs.170,833 payable with interest at Court rates from date of judgment till payment in full
- 6.Respondent to pay costs of the suit
- 7.Supplementary statement of claim struck off as an abuse of the process of the Court
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations (Procedure) Rules 2010 (provisions not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Timothy Njonjo Nyambura v Kabete Diary Co-op Ltd [2015] KEELRC 290 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/290/eng@2015-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.