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ELRCAllowedNot stated in judgment· [2015] KEELRC 495 (KLR)

Joseph Kambuwa v Transnick Limited [2015] KEELRC 495 (KLR)

Employment and Labour Relations Court
2 October 2015
750 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 ruled a driver's dismissal unfair because the employer failed to prove a valid reason or follow fair procedure.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a lorry driver from 2.5.2011 to 23.9.2013, sued for Ksh 364,850 as compensation for unfair termination and accrued benefits. He testified that on returning to Mombasa from Uganda on 23.9.2013 he was summoned by the respondent's personnel manager, told he was not fit to serve because he had caused the company losses, and dismissed verbally without any chance to defend himself and without prior notice. The respondent denied liability but, after a recorded partial settlement on salary in lieu of notice and leave, failed to attend the defence hearing or call any witness. The court framed two issues: whether the termination was unfair and whether the reliefs should be granted. Applying Sections 45 and 47(5) of the Employment Act, it held that the employer bears the burden of proving a valid and fair reason and a fair procedure, and the respondent having adduced no evidence, the summary dismissal was unfair and wrongful. The claimant was awarded six months' salary (Ksh 115,800) as compensation, having regard to his short service, employability within six months and his preference for compensation over reinstatement. Unrebutted claims for mileage subsistence allowance (Ksh 7,800) and salary arrears for July to September 2013 (Ksh 57,900) were allowed. Judgment was entered for the claimant for Ksh 181,500 plus costs and interest, dated and delivered at Mombasa on 2 October 2015.

Key legal issues

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01

Unfair termination

Holding

The summary dismissal on 23.9.2013 for alleged unfitness was unfair and wrongful

Reasoning

The claimant testified he was dismissed verbally without being given a chance to defend himself. The respondent called no witness and adduced no evidence, so failed to discharge the burden under Sections 45 and 47(5) of the Employment Act to prove a valid reason and fair procedure. On a balance of probability the dismissal was unfair and wrongful.

p. 2
02

Compensation for unfair termination

Holding

Six months' salary awarded as compensation

Reasoning

In assessing compensation the court considered the claimant's short service period, that with due diligence he could secure alternative employment as a lorry driver within six months, and his expressed preference for compensation over reinstatement.

p. 2
03

Mileage allowance and salary arrears

Holding

Claims for Ksh 7,800 mileage subsistence and Ksh 57,900 salary arrears for July–September 2013 allowed as prayed

Reasoning

The respondent produced no evidence to rebut the claimant's testimony on the mileage balance and withheld salary for the three months. The court reasoned that if the respondent had paid these dues, she could easily have produced documentary evidence to disprove the claims.

p. 2

Legal principles established

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  • Termination of employment is unfair if the employer fails to prove a valid and fair reason and a fair procedure
  • Where an employer adduces no evidence to rebut an employee's unchallenged testimony, the court finds on a balance of probability for the employee

Court orders

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  1. 1.Declaration that the termination of the claimant's employment by the respondent was unfair and wrongful
  2. 2.Award of 6 months' salary (Ksh 115,800) as compensation for unfair termination
  3. 3.Award of Ksh 7,800 mileage subsistence allowance and Ksh 57,900 salary arrears for July, August and September 2013
  4. 4.Judgment entered for the claimant for Ksh 181,500 plus costs and interest

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 47(5)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Section 45, 47(5))

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, "Joseph Kambuwa v Transnick Limited [2015] KEELRC 495 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/495/eng@2015-10-02

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