Cosmas Mwendwa Maithya v Enashipai Resort & Spa & another [2015] KEELRC 926 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Fairness of the summary dismissal
The summary dismissal was procedurally unfair as the Respondent failed to comply with section 41 of the Employment Act
The dismissal was for misconduct, requiring compliance with natural justice under section 41. The suspension letter only informed the Claimant of allegations for investigative purposes. The Respondent's witness was employed after the dismissal, had no records of a disciplinary hearing, and those who handled the process were not called as witnesses. The Respondent therefore failed to discharge the burden under section 41.
Validity of contractual termination clauses vis-a-vis statutory minimums
Contractual provisions allowing termination on notice without valid and fair reasons fall below the minimum protection of section 45 and are invalid
The Respondent argued the dismissal was per the contract and notice pay was paid. The Court held the statutory framework now requires fair and valid reasons for dismissal, and contractual terms providing termination without cause are invalid for falling below section 45's minimum protections.
Appropriate remedies for unfair dismissal
Compensation of 3 months gross wages awarded, plus double shift dues and July 2013 service charge
Compensation is a primary remedy for unfair termination but is discretionary. Considering the Claimant's roughly 3 years of service and his above-average chances of securing alternative employment as a chef, the Court awarded the equivalent of 3 months gross wages, assessed at Kshs 100,392/-, alongside unchallenged double shift and service charge claims.
Legal principles established
#- Section 41 of the Employment Act requires an employer to comply with the rules of natural justice before terminating an employee's services, and where the disciplinary process is not fully documented the employer must disclose who informed the employee of the allegations, when the hearing was conducted, who was present and the outcome
- Contractual provisions permitting termination on notice or pay in lieu of notice without valid and fair reasons are invalid for falling below the statutory minimum protection under section 45 of the Employment Act
- A hearing under section 41 of the Employment Act may be conducted through correspondence or through a face to face meeting
Court orders
#- 1.1st Respondent to pay Claimant Kshs 129,547/- double shift
- 2.1st Respondent to pay Claimant Kshs 20,000/- service charge for July 2013
- 3.1st Respondent to pay Claimant Kshs 100,392/- being 3 months gross wages as compensation for unfair dismissal
- 4.Total award of Kshs 249,939/-
- 5.Heads of claim for one month pay in lieu of notice, annual leave, 2 years and 9 months, house allowance and pay for period out of employment dismissed
- 6.Claimant to have costs of Kshs 75,000/-
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cosmas Mwendwa Maithya v Enashipai Resort & Spa & another [2015] KEELRC 926 (KLR)", Case Analysis (2015). Cause No. 428 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/926/eng@2015-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.