Peter Kimunyu v Highlands Mineral Water Company Limited [2016] KEELRC 778 (KLR)
The bottom line
#Kenya's Employment Court ruled that firing an employee with two contradictory reasons—redundancy and misconduct—breaks employment law.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was justifiable and fair
Termination was substantively and procedurally unfair
The termination letter cited organizational review (redundancy) while the Respondent pleaded and submitted that the Claimant was terminated for misconduct. The Court held that redundancy and misconduct are miles apart, and proffering both reasons amounted to a fishing expedition that failed the Section 43 valid-reason requirement. Additionally, no attempt was made to follow the procedure under Section 40 (redundancy) or Section 41 (misconduct) of the Employment Act.
Whether the medical allowance was deferred pending confirmation
The allowance was payable from the date of appointment
The letter of appointment stated the Claimant was entitled to a medical scheme, and the pay slips showed it operated as a monthly allowance of Kshs. 5,715. Neither the appointment nor the confirmation letters expressed an intention to defer the benefit pending confirmation. Applying the principle that courts should not rewrite contracts, the claim for the allowance from the date of appointment succeeded.
Whether the Claimant was paid salary for November 2011
Claim succeeded; the Respondent did not prove payment
The Claimant testified he was not paid his November 2011 salary, and the Respondent failed to provide documentary evidence to substantiate its assertion that the salary had been paid. The burden not being discharged, the claim was allowed as part of the final award.
Whether the Claimant was entitled to pay in lieu of notice
Not entitled, as due notice was given
The termination letter expressly gave eight weeks' notice effective from its date, and the Respondent maintained the Claimant served the notice and was paid all dues. On the evidence, the Court found due notice of termination was given, defeating the notice-pay head of claim.
Legal principles established
#- An employer who proffers two inconsistent reasons (redundancy and misconduct) for termination in the same cause has not established a valid reason under Section 43 of the Employment Act, 2007.
- It is not the responsibility of the Court to rewrite contracts between parties.
Court orders
#- 1.Six months' salary in compensation for unfair termination (Kshs. 874,290)
- 2.Medical allowance for January to April 2010 (Kshs. 22,860)
- 3.Salary for November 2011 (Kshs. 145,715), total award Kshs. 1,042,865
- 4.Respondent directed to issue the Claimant with a certificate of service
- 5.Claimant awarded costs of the case
- 6.Award to attract interest at court rates from the date of the award until payment in full
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (implied from the Court's jurisdiction over the employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kimunyu v Highlands Mineral Water Company Limited [2016] KEELRC 778 (KLR)", Case Analysis (2016). Cause No 1006 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/778/eng@2016-08-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.