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ELRCPartially AllowedCause No. 700 of 2012· [2015] KEELRC 1274 (KLR)

Moses Mutinda v Air-Kenya Express Limited [2015] KEELRC 1274 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
4 March 2015
HWHellen S. Wasilwa
1,140 words in judgment
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The bottom line

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Kenyan employers cannot skip the hearing and notice rules in the Employment Act, even when the contract allows termination by notice.

What this practically means

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Executive summary

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The Claimant, employed from June 1987 as an aeroplane cleaner and later a towing driver, had his services transferred from Airkenya Aviation Limited to the Respondent in April 2006 on unchanged terms, with a new three-year contract that ran until 2012. On 7th February 2012 the Respondent terminated his employment effective 10th February 2012, invoking Clause 13 of the contract allowing termination by one month's written notice, and paying a month's salary in lieu of notice. The Claimant sued for damages for unlawful termination and terminal dues totalling Kshs.1,619,955.60. The Respondent denied the employment relationship, contended the Claimant had received warnings for breach of company policies, asserted no show-cause notice was required under Section 41 of the Employment Act, disputed liability for severance pay and gratuity, and admitted only Kshs.37,999.57 as due. The court identified two issues: whether the termination was unfair and unlawful, and the remedies available. It found the contract proved the employment relationship despite the denial, and held that the termination letter failed to appreciate the law: no hearing was given as required by Section 41 and no notice as required by Section 35(1). The termination was accordingly unlawful, wrongful and unfair. The court awarded leave pay of Kshs.4,305.33, one month's salary in lieu of notice of Kshs.56,173, salary earned up to 10/2/2012 of Kshs.22,685.20, and 12 months' salary as compensation for unlawful termination of Kshs.680,556, less statutory deductions, plus a Certificate of Service, with costs to the Claimant.

Key legal issues

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01

Whether an employment relationship existed between the Claimant and the Respondent

Holding

The court found the employment relationship proved by the written contract (Appendix 3) despite the Respondent's initial denial.

Reasoning

The Respondent denied ever employing the Claimant, but the contract of service dated with effect from 4th May 2006, being an extension of his previous employment with Airkenya Aviation Limited, and a warning letter issued by the Respondent evidenced the relationship up to 2012. Documentary evidence thus overcame the denial.

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02

Whether the termination was unfair and unlawful

Holding

The termination was unlawful, wrongful and unfair because the Claimant was given neither a hearing under Section 41 nor proper notice under Section 35(1) of the Employment Act.

Reasoning

The Respondent relied on Clause 13 of the contract permitting termination by one month's notice and argued it was not obliged to issue a show-cause notice under Section 41. The court held the termination letter failed to appreciate the law: the Claimant was not heard and the letter dated 7/2/2012 terminated employment effective 10/2/2012, so the statutory notice was not honoured.

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What remedies the Claimant is entitled to

Holding

The Claimant was awarded leave pay, one month's salary in lieu of notice, salary earned to termination, and 12 months' salary as compensation for unfair termination, plus a Certificate of Service.

Reasoning

Having found the termination unlawful, the court assessed dues: leave earned up to 10/2/2012 as acknowledged by the Respondent; one month's salary in lieu of notice; salary earned to the termination date; and the maximum 12 months' gross salary as compensation for unlawful termination, less statutory deductions, together with a Certificate of Service.

Legal principles established

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  • Before terminating an employee's employment, an employer must explain the reasons and hear the employee's representations as required under Section 41 of the Employment Act.
  • A contractual clause permitting termination by notice does not displace the statutory requirements of notice and hearing under Sections 35 and 41 of the Employment Act.

Court orders

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  1. 1.Payment of leave earned up to 10/2/2012 of Kshs.4,305.33
  2. 2.One month's salary in lieu of notice of Kshs.56,173
  3. 3.Salary earned up to 10/2/2012 of Kshs.22,685.20
  4. 4.12 months' salary as compensation for unlawful termination, Kshs.680,556, subject to statutory deductions
  5. 5.The Claimant to be issued with a Certificate of Service
  6. 6.The Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment ActSection 41(1) and (2)
  • Employment ActSection 35(1)
  • Employment ActSection 40
  • Employment ActSection 42(1)
  • Employment ActSection 44(3) and (4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over a claim for unfair termination

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, "Moses Mutinda v Air-Kenya Express Limited [2015] KEELRC 1274 (KLR)", Case Analysis (2015). Cause No. 700 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1274/eng@2015-03-03

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