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ELRCPartially AllowedCause Number 22 of 2014· [2015] KEELRC 1321 (KLR)

Gilbert Kasumali Kithi v Nyali Beach Holiday Resort [2015] KEELRC 1321 (KLR)

Industrial Court of Kenya
13 March 2015
3,813 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 awarded a dismissed chef nearly Kshs. 900,000 because his employer had no written contract and denied him a fair hearing.

What this practically means

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Executive summary

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The Claimant, employed as an Italian Chef by the Respondent hotel on 23rd August 2008 at a basic salary of Kshs. 16,000 per month, claimed unfair and unlawful termination following his summary dismissal effective August 2012. He sought notice pay, various contractual allowances, service charge, leave pay, overtime, gratuity and compensation. The Respondent conceded employment but asserted the salary was consolidated, produced Petty Cash Vouchers showing payment of leave and other entitlements, and justified the dismissal on complaints by co-employees about lateness, grooming, sleeping at work and insubordination. The court upheld the letter of appointment produced by the Claimant, holding that under Section 10para 7 of the Employment Act the burden lay on the employer to disprove its terms, a burden the Respondent failed to discharge, its Director having vacillated between conceding and disowning the letter. The court found the salary was not consolidated and awarded house rent allowance, service charge and safety boots allowance. Notice pay was granted as unopposed. Salary for 17 days worked in August 2012 was awarded despite not being pleaded, the court holding it has latitude to go beyond pleadings in employment claims. Claims for annual leave pay, travelling allowance, public holidays overtime, gratuity and normal overtime were rejected. Although incompatibility is a fair reason for termination, the Respondent conducted no investigation, gave no hearing and kept no records; termination was unfair procedurally and substantively, and compensation of 10 months' gross salary (Kshs. 280,000) was granted. Total award: Kshs. 898,461, with no order on costs or interest.

Key legal issues

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01

Authenticity of the letter of appointment and burden of proof

Holding

The letter of appointment was upheld; the Respondent failed to disprove its terms as required by Section 10para 7 of the Employment Act

Reasoning

The Claimant produced a written contract on the Respondent's letterhead, bearing its rubber stamp and signed by him accepting the terms. The Respondent's Director conceded the contents on cross-examination but recanted on redirection. The Respondent produced no other written contract and failed to avail employment records under Section 74 to disprove the letter. The burden under Section 10para 7 fell on the employer and was not discharged.

p. 4
02

Whether the salary of Kshs. 16,000 was consolidated/all-inclusive

Holding

The salary was not consolidated; the contract specified separate allowances

Reasoning

The letter of appointment specified basic salary of Kshs. 16,000 plus house rent allowance of Kshs. 5,000, service charge of Kshs. 7,000, safety boots allowance of Kshs. 4,000 annually and transport allowance of Kshs. 1,500. Nowhere was the Kshs. 16,000 expressed to be consolidated. The Director's insistence that the salary was all-inclusive was found unpersuasive.

p. 5
03

Whether termination was unfair

Holding

Termination was unfair both procedurally and substantively; compensation of 10 months' gross salary awarded

Reasoning

Although incompatibility is a fair termination reason under Section 45para 2[b][i], the Respondent did not independently investigate the co-employees' complaints, gave the Claimant no hearing, and kept no records of warnings or lateness. The Section 41 statutory disciplinary procedure was not complied with, so termination failed both the substantive and procedural fairness tests.

p. 6
04

Whether salary for days worked in August 2012 could be awarded though not pleaded

Holding

Yes; the court has latitude in employment claims to go beyond the pleadings

Reasoning

Employment claims differ from civil claims; the court's overriding objective is enforcement of labour standards and social justice. Uncontested evidence showed the Claimant worked 17 days in August 2012, and an employee cannot be denied salary worked for merely because he overlooked pleading it. Awarded at Kshs. 10,461.

p. 5

Legal principles established

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  • Where an employer fails to produce a written contract or written particulars, the burden of proving or disproving an alleged term of employment is on the employer
  • In employment claims the court may go beyond the pleadings, the objective being enforcement of labour standards and social justice
  • Incompatibility of an employee is a fair reason for termination under Section 45para 2[b][i] of the Employment Act
  • Termination without investigation, a hearing and an opportunity to be heard is unfair on procedural and substantive grounds

Court orders

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  1. 1.Declaration that termination of the Claimant's contract was unfair
  2. 2.Respondent to pay within 30 days compensation of 10 months' gross salary at Kshs. 280,000
  3. 3.Respondent to pay 17 days' salary at Kshs. 10,461
  4. 4.Respondent to pay 1 month basic salary in lieu of notice at Kshs. 16,000
  5. 5.Respondent to pay safety boots allowance at Kshs. 16,000
  6. 6.Respondent to pay service charge at Kshs. 336,000
  7. 7.Respondent to pay house rent allowance at Kshs. 240,000 - total Kshs. 898,461
  8. 8.No order on the costs and interest
Jurisdiction invoked
Industrial Court [Procedure] Rules 2010, Rule 27[1][a]; jurisdiction over employment and labour relations disputes

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, "Gilbert Kasumali Kithi v Nyali Beach Holiday Resort [2015] KEELRC 1321 (KLR)", Case Analysis (2015). Cause Number 22 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1321/eng@2015-03-13

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