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ELRCAllowedCause Number 610 of 2014· [2015] KEELRC 667 (KLR)

Alex Charo & 3 others v Grand China Limited & another [2015] KEELRC 667 (KLR)

Industrial Court of Kenya
31 July 2015
652 words in judgment
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The bottom line

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A Kenyan court ruled four restaurant workers were unfairly sacked by phone and awarded them over Kshs. 530,000 plus interest.

What this practically means

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Executive summary

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Four claimants - two waiters, a cleaner and a chef - sued Grand China Limited and China Town Restaurant, which operate a restaurant in Mombasa, for unfair and unlawful termination of their employment on 11th April 2014. They sought declarations that the termination was unfair and that they were entitled to annual leave, house allowance and in-house savings, together with 11 days' salary for April 2014, one month's salary in lieu of notice, annual and pro-rata leave, severance pay, compensation of 12 months' salary, certificates of service and costs, totalling Kshs. 530,620. The Respondents filed a Notice of Appointment of Advocates only; they filed no defence and did not attend any mention or the hearing, so the proceedings were ex parte and the Claimants asked the court to determine the claim on their pleadings, witness statements and documents under Rule 21 of the Industrial Court (Procedure) Rules 2010. Rika J found the contracts were terminated without valid reason when the Respondents closed the restaurant, reopening only on 24th December 2014 with new employees, and that the Claimants were merely telephoned and told not to report for duty, receiving neither substantive justification nor procedural fairness. The court held the Respondents failed to discharge their obligations under Sections 41, 43, 45 and 47 of the Employment Act 2007. The court declared the termination unfair and unlawful, ordered payment of Kshs. 530,620 within 30 days with 14% interest, certificates of service forthwith, and costs to the Claimants.

Key legal issues

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01

Fairness of termination for reasons and procedure

Holding

The termination was unfair and unlawful; the Respondents had no valid reason and gave no procedural fairness, merely telephoning the Claimants not to report to duty.

Reasoning

The Claimants were employed as waiters, cleaner and chef, and their contracts were terminated on 11th April 2014 when the Respondents closed their restaurant, only reopening on 24th December 2014 with new employees. The court found no valid reason was shown and the Claimants were simply informed by phone not to report for duty. The Respondents neither filed a defence nor attended court, so there was no counterevidence, and the burden of justifying termination was not discharged under the Employment Act.

p. 2
02

Ex parte determination on the record

Holding

The court determined the claim under Rule 21 of the Industrial Court (Procedure) Rules 2010 on the Claimants' pleadings, witness statements and documents.

Reasoning

The Respondents filed only a Notice of Appointment of Advocates and nothing else; they were notified of mention dates and the hearing but neither challenged the claim nor attended. Proceedings were therefore ex parte and the court assessed remedies on the quantum particularised in the Statement of Claim, awarding the full amount claimed of Kshs. 530,620.

p. 2

Legal principles established

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  • Termination is unfair both where there is no valid reason (substantive fairness) and where the employee is not afforded procedural fairness, contrary to Sections 41, 43, 45 and 47 of the Employment Act 2007.
  • Where a respondent fails to file any defence or attend court, the claim may be determined ex parte on the claimant's record and unrebutted evidence.

Court orders

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  1. 1.Declaration that termination of the Claimants' contracts of employment was unfair and unlawful
  2. 2.Respondents to pay the Claimants a total of Kshs. 530,620 within 30 days, with interest of 14% from the date of delivery of the Award
  3. 3.Respondents to avail Certificates of Service to the Claimants forthwith
  4. 4.Costs to the Claimants

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
  • Industrial Court (Procedure) Rules 2010Rule 21
  • Employment Act 2007Sections 41, 43, 45 and 47
Jurisdiction invoked
Industrial Court jurisdiction under the Industrial Court Act; proceedings conducted under Rule 27(1)(a) and Rule 21 of the Industrial Court (Procedure) Rules 2010

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, "Alex Charo & 3 others v Grand China Limited & another [2015] KEELRC 667 (KLR)", Case Analysis (2015). Cause Number 610 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/667/eng@2015-07-31

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