Fred Mudembei Shilagava v Emco Billets and Steel Limited [2015] KEELRC 1107 (KLR)
The bottom line
#A Kenyan court ruled that even when an employee gives an employer valid grounds to fire them, skipping fair procedure still makes the dismissal unlawful.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was a casual or full time employee
The Claimant was a full time employee on term contract, earning a monthly salary of Kshs.11,820.
Payment of full NSSF and NHIF dues by the Respondent was inconsistent with casual employment, and the Respondent's casual payment records were neither signed nor stamped, casting doubt on their veracity. Applying the statutory definition of casual employment and Section 37 conversion, the Court found the Claimant was on a term contract and adopted the pleaded uncontroverted salary of Kshs.394 per day.
Whether the termination was substantively justified
The Respondent had a valid reason for terminating the employment because the Claimant failed to notify it of his illness.
Section 44(4) recognises desertion as a ground for summary dismissal, but the Respondent gave no notice to show cause to establish desertion. However, Section 30(2) requires an employee to notify the employer of illness; the Claimant adduced no evidence of notification, so the employer had a valid reason under Section 43.
Whether the termination was procedurally fair
The termination was unfair for want of due procedure under Section 41.
The reason for termination fell under gross misconduct, engaging the procedural fairness requirements of Section 41. The Court found no attempt by the Respondent to comply with Section 41's requirements, rendering the termination procedurally unfair.
Legal principles established
#- An employer asserting that an employee deserted duty must evidence the assertion by a notice to show cause why employment should not be terminated on that ground.
- Failure by an employee to notify their employer of their illness avails the employer a good defence in a claim for unlawful termination of employment.
- The employment of a casual employee who works continuously for at least one month is deemed converted to a term contract by operation of law.
Court orders
#- 1.Respondent to pay the Claimant 3 months' salary in compensation for unfair termination (Kshs.35,460.00)
- 2.Respondent to pay the Claimant 1 month's salary in lieu of notice (Kshs.11,820.00)
- 3.Respondent to pay the Claimant 39 days' leave pay (Kshs.15,366.00), total Kshs.62,646.00
- 4.Respondent to issue the Claimant with a certificate of service
- 5.Respondent to meet the costs of the case
- 6.Award amount to attract interest at court rates from the date of the award until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Alomba v Green Park Golf & Country Complex t/a the Great Rift Valley Lodge & Golf Resort (Civil Appeal 46 of 2019) [2025] KECA 378 (KLR)[2025] KECA 378 (KLR)28 Feb 2025
- Dorothy Njoki Ndung’u v Machakos University College & another [2016] KEELRC 17 (KLR)[2016] KEELRC 17 (KLR)13 Oct 2016applied
Cite this brief
#Cite this brief
Caselaw, "Fred Mudembei Shilagava v Emco Billets and Steel Limited [2015] KEELRC 1107 (KLR)", Case Analysis (2015). Cause No 2327 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1107/eng@2015-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.