Kennedy Senelwa Ombeva v Kevita International Company Limited [2016] KEELRC 66 (KLR)

Section 43 requires a valid reason for termination, made known through internal disciplinary proceedings triggered by a notice to show cause. Section 41 sets out a mandatory procedure. The Claimant denied losing the tools and there was no evidence he was given an opportunity to defend himself. The Respondent therefore failed to establish a valid reason and ignored due procedure.

The Respondent produced a written contract dated 12th February 2013. Where parties reduce an agreement into a legally acceptable written contract, the Court should not introduce oral terms, except where the written contract is used to deny accrued benefits. No such mischief was found in the evidence.

Section 31 of the Employment Act obliges the employer to provide housing or a rent sum, unless the contract consolidates a housing element in the wage. The contract provided only a basic salary of Kshs. 20,000 and no pay slip reflected house allowance, so the exclusion did not apply.

The termination letter directed the Claimant to take leave during the notice period. Notice and leave are distinct entitlements and cannot be traded; the employer's only option to avoid an employee serving notice is to pay for the notice period. The court also discounted 7 days of leave the Claimant admitted taking.

Service pay is not payable to a contributing NSSF member under the applicable regime. The claims for overtime and underpayment were not proved and were dismissed. For NSSF and NHIF refunds, the court ordered facilitation of regularization of accounts instead of payment.