Christine Ingwalas Emokori v Penta Tancom Limited [2016] KEELRC 474 (KLR)
The bottom line
#A Kenyan court awarded a dismissed employee 12 months' salary because her employer could not prove why it fired her or show she got a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether there were valid reasons to warrant the dismissal of the Claimant
There were no valid reasons; the Respondent failed to prove the reason for dismissal, particularly as the termination letter was silent on reasons and pregnancy could not have been a ground since the Respondent was unaware of it.
The Respondent cited absenteeism but the termination letter was silent on the reasons for termination. Under Section 43 of the Employment Act, the employer must prove the reasons for termination, and the reasons are those the employer genuinely believed to exist at the time. The court found the Respondent did not prove any reason and that the claim of dismissal on account of pregnancy was untrue, as pregnancy was only diagnosed on 1.11.2008, after the dismissal.
Whether due process was followed before the Claimant's dismissal
Due process was not followed; no fair hearing under Section 41 of the Employment Act was demonstrated.
The court found that the Claimant was denied an opportunity to be heard as required by Section 41 of the Employment Act. The Respondent produced no record showing when any hearing occurred and who was present. Combined with the absence of valid reasons, the termination failed both the substantive and procedural limbs of Section 45(2).
Whether the Claimant is entitled to the remedies sought
The Claimant was awarded one month's salary in lieu of notice and 12 months' salary as damages for unlawful termination, plus costs and a Certificate of Service.
Having found the termination unfair under Section 45(2), the court exercised its discretion to award the equivalent of twelve months' gross salary as compensation for unlawful termination, together with payment in lieu of notice, noting the Claimant's dismissal without cause or due process. Service pay was not included in the final award.
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, failing which the termination is deemed unfair.
- A termination is unfair where the employer fails to prove a valid and fair reason and that a fair procedure was followed.
Court orders
#- 1.Payment of 1 month's salary in lieu of notice of Kshs. 4,600/=.
- 2.Payment of 12 months' salary as damages for unlawful termination, being 12 x 4,600 = Kshs. 55,200/=.
- 3.Total award of Kshs. 59,800/= to the Claimant.
- 4.Respondent to pay costs of the suit.
- 5.Issuance of a Certificate of Service to the Claimant.
- 6.Declaration that the Claimant's termination was unfair and unjustified in terms of Section 45(2) of the Employment Act.
- Jurisdiction invoked
- Jurisdiction challenged on the ground that the Claimant had filed two different cases in different Courts; no constitutional or statutory jurisdictional provision expressly invoked in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Christine Ingwalas Emokori v Penta Tancom Limited [2016] KEELRC 474 (KLR)", Case Analysis (2016). Cause No 1297 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/474/eng@2016-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.