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ELRCPartially AllowedCause No. 1908 of 2011· [2015] KEELRC 333 (KLR)

Kenya Union of Employees Of Voluntary and Charitable Organisations (Kuevaco) v Nairobi Pentecostal Church Christ is the Answer Ministries (Npc-Citam) [2015] KEELRC 333 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
29 October 2015
HWHellen S. Wasilwa
2,047 words in judgment
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The bottom line

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A Kenyan church wrongfully fired its pastor and paid over Kshs 1.3 million because its termination letter gave no valid reason and she was never heard.

What this practically means

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Executive summary

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The Kenya Union of Employees of Voluntary and Charitable Organisations (KUEVACO) filed a Memorandum of Claim on behalf of its member, Beatrice Wanjiru Karuu alias Beatrice Kamau, a Pastor employed by the Respondent church from 15th November 2007 on renewable three-year contracts, whose employment was terminated on 26th January 2011 by a letter invoking the contractual termination clause with one month's salary in lieu of notice. The Union alleged premature termination without reasons, absence of disciplinary process, defamation and non-payment of various allowances; the Respondent defended the termination as a proper exercise of the notice clause and maintained the Grievant was offered terminal dues of about Kshs. 453,722 which she refused to collect. The court framed three issues: valid reasons, due process, and remedies. Holding that the Employment Act is superior to the contract and sets minimum standards, Lady Justice Wasilwa found the termination letter disclosed no real reason, that sections 43 and 45 place the burden of proving valid reasons on the employer, and that the Grievant was never given an opportunity to defend herself contrary to section 41 and ILO Convention No. 158. The termination was therefore unfair and unjustified. On remedies, the court held that a contract silent on house allowance within a consolidated salary leaves the entitlement unaddressed, awarding 15% of basic salary for 38 months, one month's salary in lieu of notice, leave allowance for three years, and the maximum twelve months' gross salary as compensation, totalling Kshs. 1,329,131 less statutory deductions, plus costs. Defamation damages, school fees and other claimed allowances were refused for lack of proof. A Certificate of Service was ordered issued.

Key legal issues

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01

Whether there were valid reasons for the termination

Holding

There were no valid reasons; the employer failed to prove any reason as required by sections 43 and 45 of the Employment Act

Reasoning

The termination letter merely invoked the contractual termination clause without stating the reasons or the considerations relied upon. Section 43(1) places the burden on the employer to prove the reasons for termination, and failure renders the termination unfair under section 45. The existence of a contractual notice clause cannot substitute for a valid reason, since the Employment Act is superior to the contract and sets minimum standards.

p. 3
02

Whether due process was followed before dismissal

Holding

No fair procedure was followed; the Grievant was not heard or given an opportunity to defend herself

Reasoning

Section 41 of the Employment Act requires an employer to explain reasons for contemplated termination and to hear the employee's representations. The Grievant was never charged with any offence or subjected to disciplinary proceedings, and the Respondent gave no opportunity to defend herself. This contravenes section 41 and Article 7 of ILO Convention No. 158, whose contents are reflected in the Employment Act.

p. 3
03

Whether the Grievant was entitled to house allowance despite a consolidated salary

Holding

Yes; the contract was silent on house allowance within the consolidated salary, so 15% of basic salary was awarded for the 38 months worked

Reasoning

The contract provided only for a consolidated salary without expressly stating that house allowance was included. Because of this silence the issue of house allowance is not addressed, and the court inferred an entitlement to house allowance at 15% of the basic salary, computed at Kshs. 9,489 per month for 38 months, totalling Kshs. 360,594.40.

p. 4
04

What remedies were appropriate

Holding

House allowance, one month's salary in lieu of notice, leave allowance and 12 months' salary as compensation, plus a Certificate of Service

Reasoning

The court awarded contractual and statutory entitlements: house allowance of Kshs. 360,594.40; one month's gross salary in lieu of notice of Kshs. 72,751; leave allowance at 12% of basic salary for 3 years of Kshs. 22,774.32; and the maximum 12 months' gross salary as compensation for the unfair termination (Kshs. 873,012), totalling Kshs. 1,329,131 less statutory deductions, plus costs. Other claimed allowances and school fees were not awarded for want of proof.

p. 5

Legal principles established

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  • An employer must prove valid reasons for termination; a contractual termination clause does not displace the statutory requirement for valid reasons and fair procedure under the Employment Act
  • Where an employer fails to prove the reason for termination, the termination is deemed unfair under section 45 of the Employment Act
  • An employee must be given an opportunity to defend himself before termination on grounds of conduct or performance, per ILO Convention 158
  • Where a contract is silent on whether house allowance is included in a consolidated salary, the employee is entitled to house allowance

Court orders

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  1. 1.House allowance computed at 15% of basic salary (Kshs. 9,489 x 38 months) = Kshs. 360,594.40 awarded
  2. 2.One month gross salary in lieu of notice = Kshs. 72,751 awarded
  3. 3.Leave allowance being 12% of basic salary for 3 years = Kshs. 22,774.32 awarded
  4. 4.12 months' salary as compensation for unlawful termination of employment = Kshs. 873,012 awarded
  5. 5.Total award of Kshs. 1,329,131 less statutory deductions plus costs
  6. 6.Respondent to issue the Claimant with a Certificate of Service

Authorities

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Legislation

  • Employment Act, 2007Section 43(1) and (2)
  • Employment Act, 2007Section 41(1) and (2)
  • Employment Act, 2007Section 45(1) and (2)
  • Employment Act, 2007Section 31(1) and (2)
  • Employment Act, 2007Section 42(1) and Section 44(3) and (4) (referred to within section 41)
  • ILO Convention No. 158 - Termination of Employment Convention, 1982Articles 4 and 7
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment termination claim)

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, "Kenya Union of Employees Of Voluntary and Charitable Organisations (Kuevaco) v Nairobi Pentecostal Church Christ is the Answer Ministries (Npc-Citam) [2015] KEELRC 333 (KLR)", Case Analysis (2015). Cause No. 1908 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/333/eng@2015-10-29

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