Esther Mwenge v Arfa Arfa Limited [2015] KEELRC 737 (KLR)
The bottom line
#A Kenyan court awarded a cashier 12 months' salary because her employer could not prove why it fired her or give her a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons to warrant dismissal of the Claimant
The reasons given were inconsistent and unproven; the termination was unfair under Section 45(1) & (2) of the Employment Act 2007
The Respondent's allegations shifted between theft, failure to enter sales, and failure to account for stocks. Section 43 requires the employer to prove the reasons for termination; the sole witness merely repeated the defence and confirmed the Claimant was employee of the year in June 2013. The reasons thus remained mere allegations and were not proved to the standard required.
Whether due process was followed before the Claimant's dismissal
No hearing was conducted and the Respondent flouted its own disciplinary procedure; the dismissal was procedurally unfair
Section 41 of the Employment Act requires an employer to explain the reasons for contemplated termination and hear the employee's representations. The Respondent's own Terms and Conditions of Service prescribed a staged disciplinary procedure with warnings and a disciplinary meeting. No minutes or evidence of any such hearing were produced, so neither the statutory nor the contractual procedure was followed.
Whether the Claimant is entitled to the remedies sought
The Claimant was awarded one month's pay in lieu of notice, leave pay for 2012/2013, 12 months' pay as damages for unlawful termination and a certificate of service; overtime was declined for lack of computation
Although the Claimant exhibited an attendance sheet showing she worked beyond 8 hours, her payslips indicated an overtime payment of 1,500/= and she made no proper computation of overtime payable, so the court declined that head. For the successful heads, the court awarded notice pay, leave pay and the equivalent of 12 months' salary as damages for the unfair termination, plus a certificate of service and costs.
Legal principles established
#- An employer must prove the reasons for termination, and failure to do so renders the termination unfair under Section 45 of the Employment Act
- Allegations of misconduct must be proved, not left as mere allegations, and the employee must be given a hearing under Section 41 before termination
Court orders
#- 1.Payment of 1 month pay in lieu of notice of Kshs 25,651
- 2.Leave pay for year 2012/2013 of Kshs 25,651
- 3.12 months pay as damages for unlawful termination of Kshs 307,812 (total award Kshs 359,114)
- 4.Respondent to issue the Claimant with a Certificate of Service
- 5.Respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 41, 43, 45) over a claim for unlawful dismissal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Esther Mwenge v Arfa Arfa Limited [2015] KEELRC 737 (KLR)", Case Analysis (2015). Cause No. 1478 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/737/eng@2015-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.