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ELRCPartially AllowedCause No. 2135 of 2012· [2015] KEELRC 407 (KLR)

Judith Mugure Mboroki v Kenya Nut Company Limited [2015] KEELRC 407 (KLR)

Employment and Labour Relations Court
14 October 2015
HWHellen S. Wasilwa
817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled an employer who cannot prove why it fired a worker must pay up to 12 months' salary as compensation.

What this practically means

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Executive summary

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The Claimant, Judith Mugure Mboroki, filed a Memorandum of Claim on 22 October 2012 seeking termination dues of Kshs. 371,280 from Kenya Nut Company Limited, comprising service pay for 7 years, holiday pay for 9 years and salary in lieu of notice, plus damages and costs. She averred that she was employed by the Respondent as a casual employee from March 2002 at a salary of Kshs. 4,420, and that in May 2009 the Respondent orally and unlawfully terminated her employment. She relied on treatment notes from the Respondent's dispensary as proof of the employment relationship. The Respondent, through a defence filed on 14 April 2013, denied the claim, averring that the Claimant was procedurally terminated and that no terminal dues were owed; the court characterised the defence as a mere denial. The court framed two issues: whether the termination was fair and lawful, and whether the Claimant was entitled to the prayers sought. Applying Sections 43, 41 and 45 of the Employment Act, the court held that the employer bore the burden of proving the reasons for termination, which the Respondent neither pleaded nor proved, and that no due process under Section 41 was followed. The termination was therefore found unlawful and unfair. The court awarded one month's salary in lieu of notice (Kshs. 4,420) and twelve months' salary as compensation (Kshs. 53,040), totalling Kshs. 57,460, plus a Certificate of Service, with costs to the Claimant. The broader claimed sums for service pay and holiday pay were not awarded.

Key legal issues

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01

Whether the termination of the Claimant's employment was fair and lawful

Holding

The termination was unlawful and unfair under Section 45 of the Employment Act because the Respondent neither pleaded nor proved any reason for the termination and did not follow the procedure under Section 41.

Reasoning

The court found no evidence of how the termination occurred other than the Claimant's averment that she was verbally told to go away, and no reasons were given in the defence. Under Section 43, the employer must prove the reasons for termination; failure renders termination unfair under Section 45. The Respondent also failed to plead reasons and did not follow the due process mandated by Section 41 before terminating.

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02

Whether the Claimant is entitled to the prayers sought

Holding

The Claimant succeeded in part, receiving one month's salary in lieu of notice and twelve months' salary as compensation, plus a Certificate of Service and costs.

Reasoning

Having found the termination unlawful and unfair, the court awarded notice pay of Kshs. 4,420 and compensation of twelve months' salary at Kshs. 4,420 per month, totalling Kshs. 57,460, together with a Certificate of Service and costs of the suit. The broader claim of Kshs. 371,280 including service pay and holiday pay was not awarded in full.

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Legal principles established

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  • In any claim arising out of termination of a contract, the employer bears the burden of proving the reason or reasons for termination, failing which the termination is deemed unfair.
  • An employer must, before terminating employment on grounds of misconduct, poor performance or physical incapacity, explain the reasons to the employee and hear and consider any representations.
  • A termination is unfair where the employer fails to prove a valid and fair reason and that a fair procedure was followed.

Court orders

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  1. 1.Payment of 1 month's salary in lieu of notice of Kshs. 4,420
  2. 2.Payment of 12 months' salary as compensation for unlawful and unfair termination of Kshs. 53,040
  3. 3.Issuance of a Certificate of Service to the Claimant
  4. 4.Respondents to pay costs of the suit

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 45
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims; Employment Act 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Judith Mugure Mboroki v Kenya Nut Company Limited [2015] KEELRC 407 (KLR)", Case Analysis (2015). Cause No. 2135 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/407/eng@2015-10-14

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