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ELRCPartially AllowedCause No. 1648 of 2014· [2015] KEELRC 1005 (KLR)

Rioba Douglas Kamanda v Midcom Limited [2015] KEELRC 1005 (KLR)

Employment and Labour Relations Court of Kenya
27 May 2015
975 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a dismissed marketing executive over Kshs.450,000 because his employer fired him without valid, proven reasons or a hearing.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Marketing Executive from 8th April 2013 on an indefinite contract terminable on notice or payment of two months' salary, claimed unprocedural, illegal and unconstitutional dismissal. He alleged he was transferred from Nairobi to Eldoret and then to Malindi, terminated on 9th April 2014, denied a hearing despite a written request on 14th April 2014, unpaid for travel expenses of Kshs.14,000/= and unpaid terminal dues. He sought terminal dues of Kshs.109,250/=, damages for unlawful and unfair termination, costs and interest. The Respondent filed no response but its Human Resource Manager, Atul Chadurredr, testified that the Claimant's dues were paid, his performance was wanting, and that the claimant converted a payment dispute into a termination claim. The court framed three issues: validity of reasons for termination, due process, and entitlement to relief. Holding that the reasons in the termination letter (non-performance, poor work ethics, neglect of work) were never communicated to the Claimant beforehand and no proof of them was produced as required by Sections 41 and 43 of the Employment Act 2007, the court found the termination substantively and procedurally unfair. It awarded the Claimant Kshs.93,000/= unpaid travel allowance, one month's salary in lieu of notice (Kshs.27,500/=) and 12 months' salary for unlawful termination (Kshs.330,000/=), totalling Kshs.450,500/= less statutory deductions, plus costs, and ordered issuance of a Certificate of Service.

Key legal issues

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01

Validity of reasons for termination

Holding

There were no valid reasons to warrant termination; the reasons cited (non-performance, poor work ethics, neglect of work) were not communicated to the Claimant beforehand and no proof of them was shown to the court.

Reasoning

The termination letter cited non-performance, poor work ethics and neglect of work, but there was no prior communication of these issues to the Claimant. No proof of these reasons was exhibited, so the court could not ascertain their validity under Section 43 of the Employment Act, which places the burden of proving reasons on the employer.

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02

Due process before termination

Holding

No due process was followed; the Respondent did not give the Claimant the reasons for termination or an opportunity to be heard as required by Section 41 of the Employment Act 2007.

Reasoning

The Claimant wrote to the Respondent seeking to be heard but no opportunity was given. Section 41 requires an employer to explain the reasons for contemplated termination and to hear the employee's representations. The Respondent, though alleging poor performance, adduced no evidence of any such process, rendering the dismissal procedurally unfair.

p. 2

Legal principles established

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  • An employer must, before terminating employment on grounds of misconduct, poor performance or incapacity, explain the reasons to the employee and accord him an opportunity to be heard (Section 41, Employment Act 2007).
  • In any claim arising out of termination, the employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair (Section 43, Employment Act 2007).

Court orders

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  1. 1.Award of Kshs.93,000/= travel allowance not paid as pleaded
  2. 2.Award of one month salary in lieu of notice of Kshs.27,500/=
  3. 3.Award of 12 months' salary for unlawful termination being Kshs.330,000/= (12 x 27,500)
  4. 4.Total award of Kshs.450,500/= less statutory deductions plus costs
  5. 5.Respondent to issue the Claimant with a Certificate of Service

Authorities

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Legislation

  • Employment Act 2007Section 41
  • Employment Act 2007Section 42(1)
  • Employment Act 2007Section 43
  • Employment Act 2007Section 44(3) and (4)
  • Employment Act 2007Section 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act 2007)

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, "Rioba Douglas Kamanda v Midcom Limited [2015] KEELRC 1005 (KLR)", Case Analysis (2015). Cause No. 1648 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1005/eng@2015-06-09

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