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ELRCPartially AllowedCause No. 2321 of 2012· [2015] KEELRC 1393 (KLR)

Samson Kimani Gachara v Auto Springs Manufacturers Limited [2015] KEELRC 1393 (KLR)

Employment and Labour Relations Court
26 February 2015
1,872 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 an unfairly dismissed employee 12 months' salary because his employer fired him without a hearing.

What this practically means

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Executive summary

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The Claimant, employed in May 2009 as Personnel Manager under an oral agreement, alleged he was promised a basic salary of Kshs.40,000 plus allowances totaling Kshs.47,010 but was instead paid a gross salary of Kshs.20,000. He repeatedly sought salary review without response, and on 13th June 2012 was stopped at the gate following a termination letter dated 12th June 2012 alleging he had absconded duty. He claimed unlawful and unfair termination plus underpayment and terminal benefits totaling Kshs.2,094,364. The Respondent maintained the agreed gross pay was Kshs.20,000 and that the Claimant absconded after his early retirement request was rejected, warranting summary dismissal. The court framed three issues: whether the Claimant absconded or was terminated; if terminated, whether the termination was justified; and what remedies applied. It found the Claimant was terminated, not an absconder, as the Respondent's own termination letter showed. However, the claim for the higher oral salary failed: having accepted and worked at Kshs.20,000 for three years, following Miguna Miguna v A.G., the Claimant was taken to have agreed to the lower pay. On fairness, the court found the summary dismissal contravened Section 41 of the Employment Act and Article 50(1) of the Constitution because the Claimant was never given a hearing. The court awarded notice pay, 12 days' June salary, leave days, three years' gratuity, and 12 months' salary as compensation for unlawful termination, totaling Kshs.346,571 less statutory deductions, plus a Certificate of Service and costs against the Respondent.

Key legal issues

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01

Whether the Claimant absconded duty or was terminated

Holding

The Claimant was terminated, not an absconder; the termination letter dated 12/6/2012 confirms this.

Reasoning

The Respondent's own termination letter (Appendix 5) showed services were terminated on 12th June 2012 for alleged absconding. The Claimant produced evidence that he had been sent on an errand to Athi River Police Station that day. The court held the Respondent's claim of absconding was untrue in light of the termination letter.

p. 3
02

Whether the alleged oral agreement for a higher salary was enforceable

Holding

The Claimant's claim to Kshs.47,010 was rejected; by accepting and working at Kshs.20,000 for three years, he agreed to the lower amount.

Reasoning

No written contract existed, so under Section 19(7) the burden of proving the alleged term lay on the Respondent. However, following Miguna Miguna v A.G., the court held that a claimant who acknowledges the lower pay, takes up the appointment and serves for years while receiving salary cannot later sue for the higher oral term.

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Whether the termination was fair and justified

Holding

The termination was unfair and unjustified because the Claimant was not given a hearing as required by Section 41 of the Employment Act and Article 50(1) of the Constitution.

Reasoning

Section 41 requires an employer, before terminating on grounds of misconduct, to explain the reasons to the employee and hear representations. The Claimant was summarily dismissed without any hearing. Even if he had left work without permission, summary dismissal without a hearing was unlawful.

p. 4

Legal principles established

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  • Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment rests on the employer.
  • An employee who accepts employment at a lower salary and continues working for years cannot later claim breach of an alleged higher oral term.
  • Termination without a hearing under Section 41 of the Employment Act is unfair and unjustified and contravenes Article 50(1) of the Constitution.

Court orders

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  1. 1.Payment of one month's salary in lieu of notice of Kshs.20,000
  2. 2.Payment of June salary for 12 days worked of Kshs.8,000
  3. 3.Payment for 19.5 leave days of Kshs.18,571
  4. 4.Gratuity for 3 years worked of Kshs.60,000
  5. 5.Compensation of 12 months' salary for unlawful termination of Kshs.240,000
  6. 6.Total award of Kshs.346,571 less statutory deductions
  7. 7.Claimant to be issued with a Certificate of Service
  8. 8.Respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Act 2007Section 9(1)
  • Employment Act 2007Section 19(7)
  • Employment Act 2007Section 41
  • Constitution of Kenya 2010Article 50(1)

Cases cited (1)

  • Miguna Miguna – vs– A.G
    Industrial Court at Nairobi Case No. 433/2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007 and the claim for unfair termination and terminal benefits)

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, "Samson Kimani Gachara v Auto Springs Manufacturers Limited [2015] KEELRC 1393 (KLR)", Case Analysis (2015). Cause No. 2321 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1393/eng@2015-02-26

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