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ELRCPartially AllowedCause No 2267 of 2012· [2015] KEELRC 695 (KLR)

Renson Githu Karanja v Transnick Limited [2015] KEELRC 695 (KLR)

Industrial Court of Kenya
10 June 2015
NMNzioki wa Makau
734 words in judgment
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The bottom line

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Kenya's Industrial Court ruled that firing a sick worker without a hearing or explanation breaches the Employment Act, awarding the employee over Kshs 131,000.

What this practically means

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Executive summary

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The Claimant sued his erstwhile employer, Transnic Limited, alleging he was a turnboy in the Respondent's lorry which was driven carelessly, causing a road accident on 4th November 2008 along Mombasa Road, and that his services were thereafter terminated on medical grounds by letter dated 31st May 2010. He sought pay in lieu of notice, service gratuity for three years of service, leave dues for two years, and damages for the injury, the latter being indicated for referral to the Magistrates Court. The Respondent entered appearance through Muturi Gakuo & Kibara Advocates but filed no defence, so the cause proceeded undefended. The Claimant testified and produced his statement, stating he was employed in 2007 earning Kshs. 7,639/- nett and was never permitted to resume duty after healing. The court, relying on sections 41 and 45(2) of the Employment Act 2007, held that termination on grounds of physical incapacity required the employer to explain the reasons to the employee in a language he understands and to accord him fair procedure before notice. The dismissal was abrupt and without notice, hence unfair. Judgment was entered for the Claimant for Kshs. 7,999/- as notice, Kshs. 15,998/- leave dues for two years, Kshs. 11,458/- service gratuity, Kshs. 95,988/- being 12 months' compensation for unlawful dismissal, costs of the suit and a certificate of service. The judgment was delivered at Nairobi on 10th June 2015 by Nzioki wa Makau, Judge.

Key legal issues

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01

Fairness of summary termination on medical grounds without notice or hearing

Holding

The dismissal was abrupt, without notice and therefore unfair; the Claimant proved his case

Reasoning

The Respondent terminated the Claimant's employment for disability without giving him the explanation contemplated by section 41 of the Employment Act and without notice. Section 45(2) requires the employer to prove a valid reason and fair procedure, which it did not do, having not even filed a defence. Termination on account of disability required strict adherence to the statutory dictates, and failure to comply rendered the Respondent liable to notice pay, leave dues, service gratuity and 12 months' compensation.

p. 2
02

Entitlement to reliefs in an undefended cause

Holding

The Claimant was awarded notice pay, leave dues for two years, service gratuity and 12 months' compensation

Reasoning

The Claimant testified unchallenged that he earned Kshs. 7,639/- nett and served about three years from 2007 to 31st May 2010 without taking leave for two years. The Respondent entered appearance but filed no defence, so the cause proceeded undefended and the Claimant's uncontroverted evidence established his entitlement to the reliefs sought.

p. 2

Legal principles established

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  • Before terminating employment on grounds of physical incapacity, an employer must explain the reasons to the employee in a language the employee understands and allow the presence of a fellow employee or union representative
  • A termination is unfair unless the employer proves a valid and fair reason and fair procedure
  • Procedural fairness is a cardinal principle of the labour market and non-compliance attracts liability

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for Kshs. 7,999/- as notice
  2. 2.Kshs. 15,998/- being leave dues for 2 years
  3. 3.Kshs. 11,458/- as service gratuity
  4. 4.Kshs. 95,988/- being 12 months compensation for the unlawful dismissal
  5. 5.Costs of the suit to the Claimant
  6. 6.Certificate of service to be issued

Authorities

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Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 45(2)
  • Employment ActSection 42(1) (referred to in section 41)
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act 2007 (first-instance cause)

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, "Renson Githu Karanja v Transnick Limited [2015] KEELRC 695 (KLR)", Case Analysis (2015). Cause No 2267 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/695/eng@2015-06-10

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