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ELRCPartially AllowedCause No. 2099'A' of 2011· [2015] KEELRC 1127 (KLR)

Jane Kabunyi v Board of Governors - Kamirithu Primary School [2015] KEELRC 1127 (KLR)

Employment and Labour Relations Court
12 May 2015
HWHellen S. Wasilwa
670 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 ruled that firing an employee without a hearing and with a false reason was unfair, awarding her Kshs 134,750 plus costs and interest.

What this practically means

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Executive summary

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The Claimant, formerly employed by the Respondent from 1987 as a secretary and later as a member of the teaching staff, was terminated on 30/11/2010 on the ground that the Respondent could no longer afford her salary. She filed a Memorandum of Claim on 13/12/2011 seeking service pay, severance pay for 23 years, and compensation equivalent to one year's gross pay, totalling Kshs 316,250. The Respondent was served but neither entered appearance nor filed a defence, and the case proceeded exparte. The court framed two issues: whether the termination was lawful and fair, and if not, whether the Claimant was entitled to the prayers sought. On the first issue, the court found the asserted reason untruthful and malicious because the Claimant's former position still existed and had been filled by someone else. Procedurally, the Claimant was never given the hearing mandated by Section 41 of the Employment Act, and the court held the termination not just and fair. On remedies, the court treated the termination as an unlawful redundancy given the Respondent's plea of inability to pay, awarding one month's salary in lieu of notice (Kshs 5,500), severance pay under Section 40 of the Employment Act (Kshs 63,250 for 23 years), and 12 months' salary as compensation (Kshs 66,000), totalling Kshs 134,750, plus costs and interest. The Respondent was also ordered to issue the Claimant a Certificate of Service.

Key legal issues

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01

Whether the termination of the Claimant was lawful and fair

Holding

The termination was neither lawful nor fair: the claimed reason (inability to pay) was disputed since the position was refilled, and the mandatory hearing under Section 41 was never given

Reasoning

The Respondent asserted inability to pay salary, yet the Claimant's former position still existed and someone else took it over, making the reason untruthful. Procedurally, no hearing was afforded before termination as envisaged under Section 41 of the Employment Act, which requires an employer to explain the reasons and consider the employee's representations. The court therefore found the termination unjust and unfair.

p. 2
02

What remedies the Claimant is entitled to

Holding

Notice pay, severance pay under Section 40 treating the termination as unlawful redundancy, and the maximum 12 months' compensation were awarded, together with a Certificate of Service

Reasoning

Having found no notice given, the court awarded one month's salary in lieu of notice. Because the Respondent pleaded inability to pay salary, the court characterised the termination as an unlawful redundancy and granted severance pay of half a month's salary for each of the 23 years worked, plus 12 months' salary as compensation for the unfair termination, and directed issuance of a Certificate of Service.

p. 2

Legal principles established

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  • An employer must afford an employee a hearing before termination as required by Section 41 of the Employment Act, failing which the termination is unfair
  • A termination justified on grounds of inability to pay salary is properly treated as a redundancy, attracting severance pay under Section 40 of the Employment Act

Court orders

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  1. 1.1 month's salary in lieu of notice of Kshs 5,500
  2. 2.Severance pay for unlawful redundancy: ½ salary x 23 years = Kshs 63,250
  3. 3.12 months' salary as compensation for unlawful redundancy = Kshs 66,000
  4. 4.Total award of Kshs 134,750 plus costs and interest
  5. 5.Respondent to issue Claimant with a Certificate of Service

Authorities

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Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 40
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act; no specific constitutional provision cited

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, "Jane Kabunyi v Board of Governors - Kamirithu Primary School [2015] KEELRC 1127 (KLR)", Case Analysis (2015). Cause No. 2099'A' of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1127/eng@2015-05-14

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