Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 1319 (KLR)

Benjamin Kai Chilumo v Mombasa Water Supply And Sanitation Ltd [2015] KEELRC 1319 (KLR)

Employment and Labour Relations Court
27 February 2015
OMO. N. Makau
1,314 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer that fired a finance head without a hearing or valid reason was ordered to pay nearly Ksh.3 million plus interest and costs.

What this practically means

#

Executive summary

#
The claimant, employed by the respondent from October 2006 on three-year renewable contracts, was dismissed on 31/5/2012 for alleged poor performance. He sued seeking a declaration that the dismissal was wrongful and unlawful, damages, three months' salary in lieu of notice, pay for 72 leave days, gratuity, a certificate of service, costs and interest. The respondent denied liability, alleging the claimant failed to discharge his duties as Head of Finance despite several warnings, leading to compulsory leave and dismissal. The claimant testified; the respondent called no witness, and documentary evidence was admitted by consent. The court found no appraisal supported the dismissal: the claimant's last appraisal in January 2011 scored 83.3%, and a Special HR Committee dated 24/4/2012 cleared him of non-performance, findings the full Board disregarded. The dismissal was held unfair for want of a valid reason under Section 45 of the Employment Act and for want of an oral hearing under Section 41. It was also wrongful because the claimant was on a fixed term contract and was not served three months' notice per clause 18 of the contract. The court declared the dismissal unlawful and wrongful and awarded damages of Ksh.889,177 (four months' gross salary for the unexpired term), Ksh.403,906.60 for 72 leave days, gratuity of Ksh.1,669,478.46 at 31% of annual basic salary for 32 of 36 months served, and a certificate of service. Judgment was entered for Ksh.2,962,562.75 plus interest from 31/5/2012, together with costs and interest.

Key legal issues

#
01

Whether the dismissal was wrongful and unlawful

Holding

The dismissal was unfair for want of a valid reason and for want of an oral hearing, and wrongful because the claimant was on a fixed term contract and was not given 3 months' notice

Reasoning

The respondent called no witness. The claimant's uncontested evidence was that he was cleared of non-performance by the Special HR Committee on 24/4/2012 and last appraised in January 2011 scoring 83.3%, meeting all targets. No appraisal formed the basis of the dismissal. There was no oral hearing as required under Section 41, and no valid reason under Section 45. Clause 18 of the contract required 3 months' notice, which was not served.

p. 2
02

Whether the reliefs sought ought to issue

Holding

Damages of 4 months' gross salary for the unexpired term, 72 leave days' pay, gratuity at 31% for 32 of 36 months served, and a certificate of service were awarded; judgment entered for Ksh.2,962,562.75 plus interest and costs

Reasoning

Damages for breach of contract are the gross pay the employee would have earned for the period of the breach. Leave pay was calculated on basic pay of Ksh.168,294.42 per month. Gratuity was awarded at the contractual rate of 31% of annual basic salary, excluding the lapsed first contract period. The certificate of service was granted as prayed.

p. 3

Legal principles established

#
  • Termination of employment requires a valid and fair reason under Section 45 of the Employment Act and a hearing under Section 41
  • An employee on a fixed term contract is entitled to continue working until the contract expires unless lawfully terminated
  • Damages for breach of an employment contract equal the gross pay the employee would have earned for the unexpired period

Court orders

#
  1. 1.Declaration that the dismissal of the claimant on 31/5/2012 was unlawful and wrongful
  2. 2.Damages for wrongful termination of the fixed term contract assessed at Ksh.889,177 being 4 months gross salary for the unexpired period
  3. 3.Ksh.403,906.60 in respect of 72 unutilised leave days
  4. 4.Gratuity at 31% of annual basic salary for 32 out of 36 months served, being Ksh.1,669,478.46
  5. 5.Certificate of service
  6. 6.Judgment entered for the claimant in the sum of Ksh.2,962,562.75 plus interest from 31/5/2012 until payment in full
  7. 7.Costs and interest to the claimant

Authorities

#

Legislation

  • Employment ActSection 45
  • Employment ActSection 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act and contract of employment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Benjamin Kai Chilumo v Mombasa Water Supply And Sanitation Ltd [2015] KEELRC 1319 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1319/eng@2015-02-27

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