Conslata Witambira Lwichi v Harvest Limited [2015] KEELRC 1145 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the termination was procedurally fair under section 41 of the Employment Act, 2007
The purported hearing of 15 July 2014 was a sham because the decision to terminate had already been made and reduced to writing before the effective date.
Section 41 entitles an employee to a hearing before termination on grounds of misconduct or performance. The termination letter was dated 9 July 2014 with effect from 15 June 2014, showing a decision had been taken before the purported meeting of 15 July 2014. A hearing conducted after a decision is already made cannot satisfy section 41; it was mere camouflage.
Whether the employer proved valid and fair reasons for termination under sections 43 and 45
The Respondent failed to prove the Standard Operating Procedures allegedly flouted or any misleading data, so the reasons were not proved valid and fair.
The employer bore the statutory burden of proving the reasons for termination and their validity. Although the termination letter referred to flouted Standard Operating Procedures and misleading data sent to headquarters, the Respondent demonstrated neither the procedures nor the data, dealing with its case casually despite possibly having had a good case.
Entitlement to notice under section 35(1)(c)
The Claimant, paid monthly, was entitled to 28 days written notice which was not given.
As a monthly-paid employee, the Claimant was entitled to 28 days written notice under section 35(1)(c) of the Employment Act, or one month's notice or pay in lieu under clause 10(a) of the contract. She was neither dismissed through contractual nor statutory provision, so notice was due; its absence established unfair termination.
Legal principles established
#- A pre-dated termination letter indicates the decision to terminate had already been made, rendering any subsequent hearing a sham and offending section 41 of the Employment Act.
- An employer bears the statutory burden of proving valid and fair reasons for termination under sections 43 and 45 of the Employment Act, 2007.
- A hearing under section 41 may be conducted through correspondence or orally.
Court orders
#- 1.Respondent to pay Kshs 48,387/- as days worked
- 2.Respondent to pay Kshs 100,000/- being one month pay in lieu of notice
- 3.Respondent to pay Kshs 134,615/- as outstanding leave
- 4.Respondent to pay Kshs 200,000/- as 2 months wages compensation, total Kshs 483,002/-
- 5.Respondent to issue a Certificate of Service to the Claimant forthwith
- 6.Claimant to have costs of the Cause
- Jurisdiction invoked
- Jurisdiction under the Employment Act, 2007 (unfair termination claim); specific constitutional/statutory provision not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Conslata Witambira Lwichi v Harvest Limited [2015] KEELRC 1145 (KLR)", Case Analysis (2015). Cause No 372 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1145/eng@2015-04-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.