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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 1006 of 2013· [2016] KEELRC 778 (KLR)

Peter Kimunyu v Highlands Mineral Water Company Limited [2016] KEELRC 778 (KLR)

Employment and Labour Relations Court
15 August 2016
1,205 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that firing an employee with two contradictory reasons—redundancy and misconduct—breaks employment law.

What this practically means

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Executive summary

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This first-instance judgment of the Employment and Labour Relations Court at Nairobi determined a claim by Peter Kimunyu, a former Sales & Marketing Manager, against Highlands Mineral Water Company Limited for unfair termination and associated dues. The claimant was employed in January 2010 at a monthly salary of Kshs. 140,000 plus a medical allowance, and his employment was terminated by letter dated 18th October 2011 giving eight weeks' notice, the letter citing an organizational review. The respondent alternatively pleaded misconduct arising from intoxication. The Court framed two issues: whether the termination was justifiable and fair, and whether the claimant was entitled to the remedies sought. Holding that redundancy and misconduct are 'miles apart', the Court found that an employer proffering both reasons in the same cause was on a fishing expedition and had not established a valid reason under Section 43 of the Employment Act; nor was the procedure under Section 40 (redundancy) or Section 41 (misconduct) followed. The termination was accordingly held substantively and procedurally unfair. The Court awarded six months' salary as compensation, having considered the claimant's length of service and the respondent's conduct. The claim for the medical allowance from the date of appointment succeeded, the Court refusing to rewrite the contract per National Bank v Pipe Plastic Samkolit, and the November 2011 salary claim succeeded for want of evidence of payment. The notice-pay claim failed because due notice had been given. The respondent was directed to issue a certificate of service; the claimant was awarded costs and interest at court rates from the date of the award until payment in full.

Key legal issues

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01

Whether the termination of the Claimant's employment was justifiable and fair

Holding

Termination was substantively and procedurally unfair

Reasoning

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.

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02

Whether the medical allowance was deferred pending confirmation

Holding

The allowance was payable from the date of appointment

Reasoning

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.

p. 3
03

Whether the Claimant was paid salary for November 2011

Holding

Claim succeeded; the Respondent did not prove payment

Reasoning

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.

p. 3
04

Whether the Claimant was entitled to pay in lieu of notice

Holding

Not entitled, as due notice was given

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Six months' salary in compensation for unfair termination (Kshs. 874,290)
  2. 2.Medical allowance for January to April 2010 (Kshs. 22,860)
  3. 3.Salary for November 2011 (Kshs. 145,715), total award Kshs. 1,042,865
  4. 4.Respondent directed to issue the Claimant with a certificate of service
  5. 5.Claimant awarded costs of the case
  6. 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

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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, "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.