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ELRCPartially AllowedCause No. 809 of 2014· [2015] KEELRC 553 (KLR)

Francis Mwina Kimatu v General Industries Limited [2015] KEELRC 553 (KLR)

Employment and Labour Relations Court
20 August 2015
HWHellen S. Wasilwa
522 words in judgment
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The bottom line

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A Kenyan employer that fired a worker without reasons or a hearing, then ignored the court case, was ordered to pay a full year's salary as compensation.

What this practically means

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Executive summary

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The Claimant, Francis Mwina Kimatu, filed a Memorandum of Claim on 15/5/2014 against General Industries Limited, alleging that he was employed as a casual worker in 2006 and promoted to general worker, working under a renewable contract from 1st February 2012 to 31st January 2013 which was in fact extended, as evidenced by his August 2013 payslip. He averred that on 20/9/2013, after returning from 10 days' leave, the HR Manager informed him his services were no longer required, without a termination letter or any reasons. The Respondent was served on 27/5/2014 but filed neither appearance nor response, and the cause proceeded exparte. The court found the Claimant had adduced evidence of employment and, in the absence of any evidence to the contrary, had proved that he was terminated without reasons and without due process contrary to Sections 45(1) and (2) of the Employment Act, which require an employer to prove a valid and fair reason and fair procedure. The court found the termination unfair and unjustified. It awarded the Claimant 12 months' salary as compensation for unlawful termination (Kshs. 145,764) and one month's salary in lieu of notice (Kshs. 12,147), totaling Kshs. 157,911. It declined severance pay because the Claimant was not declared redundant, ordered issuance of a Certificate of Service, and awarded costs of the suit to the Claimant. Judgment was read in open court on 20th August 2015 by Lady Justice Hellen Wasilwa.

Key legal issues

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01

Unfair termination

Holding

The termination was unfair and unjustified as the Respondent gave no reasons and followed no fair procedure, and adduced no evidence to counter the claim

Reasoning

The Claimant was employed under a renewable contract which was extended beyond its stated term, as shown by his 2013 payslip. On 20/9/2013 his services were terminated without a letter or reasons. The Respondent did not file a response or appear, so the case proceeded exparte. Under Sections 45(1) and (2) of the Employment Act, an employer must prove a valid and fair reason and fair procedure; failing that, the termination is unfair. No contrary evidence was adduced.

p. 2

Legal principles established

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  • An employer who fails to appear or adduce evidence risks a finding that the claimant has proved unfair termination

Court orders

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  1. 1.Claimant to be paid 12 months salary as compensation for unlawful termination of Kshs. 145,764
  2. 2.Claimant to be paid 1 month salary in lieu of notice of Kshs. 12,147
  3. 3.Claim for severance pay not payable as the claimant was not declared redundant
  4. 4.Claimant to be issued with a Certificate of Service
  5. 5.Respondent to meet costs of the suit

Authorities

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Legislation

  • Employment ActSections 45(1) and 45(2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim under Section 45)

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, "Francis Mwina Kimatu v General Industries Limited [2015] KEELRC 553 (KLR)", Case Analysis (2015). Cause No. 809 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/553/eng@2015-08-20

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