Joseph Isagi Nyando v Imagine Imc Limited [2015] KEELRC 1421 (KLR)
The bottom line
#A Kenyan court awarded a driver 12 months' salary because his employer fired him without a fair hearing or proof of misconduct.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the Claimant was lawful and justified
The dismissal was unlawful and unjustified: the Respondent failed to prove the alleged misconduct and did not accord the Claimant a hearing as required by Section 41 of the Employment Act 2007, contravening Article 50(1) of the Constitution.
Section 43 of the Employment Act places the burden on the employer to prove reasons for termination. The Respondent alleged insubordination and abusive language but relied only on an unsigned, unacknowledged verbal warning, which the court held to be a mere allegation. Section 41 requires an explanation and a hearing before termination on misconduct grounds; none was accorded. This denial of a hearing also flouted Article 50(1) of the Constitution, so the dismissal could not stand.
Whether the Claimant was entitled to payment in lieu of notice
The Claimant was entitled to one month's salary in lieu of notice under the contract and Section 35 of the Employment Act 2007, assessed at Kshs.25,000/=.
The court found that the Claimant received no notice as envisaged under his contract of employment and under Section 35 of the Employment Act 2007, and therefore awarded one month's salary, equivalent to his reviewed monthly salary of Kshs.25,000/=, in lieu of notice.
Whether the Claimant was entitled to house allowance
The Claimant was entitled to house allowance at 15% of monthly salary for the 8 months worked, totalling Kshs.30,000/=, because the contract did not consolidate house allowance into the salary.
Section 31(1) and (2) of the Employment Act obliges the employer to provide housing or a rent sum, but exempts contracts that expressly consolidate a housing element into the basic wage. The Claimant's contract was silent on consolidation, so house allowance was payable separately at 15% of the monthly salary of Kshs.25,000/= for the 8 months worked.
Whether the Claimant was entitled to damages for unlawful termination and a certificate of service
Having found the termination unlawful, the court awarded 12 months' salary (Kshs.300,000/=) as damages and ordered issuance of a Certificate of Service.
Because the dismissal was found unlawful and unjustified, the court exercised its remedial powers to award the equivalent of twelve months' salary as damages for unlawful termination, and directed that the Claimant be issued with a Certificate of Service, an entitlement the Respondent had also indicated willingness to honour.
Legal principles established
#- In any claim arising out of termination of a contract, the employer bears the burden of proving the reason or reasons for termination; failure to do so renders the termination unfair.
- Before terminating employment on grounds of misconduct, an employer must explain the reasons to the employee and hear and consider any representations; failure to accord a hearing renders the dismissal unlawful.
- Where an employer intends that salary encompasses house allowance, this must be expressly stated in the employment contract; otherwise house allowance is payable separately at 15% of salary.
- An alleged verbal warning not signed or acknowledged by the employee remains a mere allegation incapable of proving misconduct.
Court orders
#- 1.Payment of one month's salary in lieu of notice of Kshs.25,000/= to the Claimant
- 2.Payment of house allowance for 8 months worked, computed as 15% of monthly salary x 8 x 25,000 = Kshs.30,000/=
- 3.Award of 12 months' salary as damages for unlawful termination, i.e. Kshs.300,000/=
- 4.Total award of Kshs.355,000/= plus costs of the suit
- 5.The Claimant to be issued with a Certificate of Service
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (claim for unfair termination under the Employment Act 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Isagi Nyando v Imagine Imc Limited [2015] KEELRC 1421 (KLR)", Case Analysis (2015). Cause No. 2555 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1421/eng@2015-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.