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ELRCPartially AllowedCause No. 130 of 2014· [2016] KEELRC 870 (KLR)

Chrispo Amudoli Sungu v Jiangxi Zhongmei Engineering Construction Ltd [2016] KEELRC 870 (KLR)

Employment and Labour Relations Court at Kisumu
23 June 2016
1,482 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court found the worker's firing unfair because the employer couldn't prove he received a hearing invitation, but awarded far less than the 16 years' salary he demanded.

What this practically means

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Executive summary

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The claimant, employed by the respondent as an Environment, Health and Safety Officer on 1st June 2013, was terminated on 19th May 2014 following a raid on fuel syphoning at Malili and a subsequent drivers' strike. He sued for unpaid May salary (Kshs.31,666.70) and salary for 16 years to retirement age (Kshs.9,600,000), plus costs and interest. The respondent justified the termination on allegations of bribery and collusion in fuel syphoning, relying on an M-Pesa statement of David Wafula Natembea, and asserted the claimant was invited to a disciplinary hearing on 17th May 2014 but failed to attend. The claimant denied receiving the invitation or the termination letter; Wafula testified he gave the M-Pesa statement to the claimant over a tomato business dispute, not to the respondent. The court framed two issues: whether the termination was unfair and whether the claimant was entitled to the remedies sought. Applying sections 41, 43 and 49 of the Employment Act, the court found no proof the claimant received the disciplinary hearing invitation, rendering the termination procedurally unfair. It refused anticipatory damages to retirement age, holding there is no permanency in employment contracts and no statutory retirement age, following D.K. Njagi Mareta, Menginya Salim Murgani and Engineer Francis N. Gachuri. The court awarded the unpaid May salary of Kshs.31,666.70 and one month's salary (Kshs.50,000) as compensation, and 50% costs to the claimant.

Key legal issues

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01

Procedural fairness of the termination

Holding

Termination was procedurally unfair because proof of receipt of the disciplinary hearing invitation was lacking

Reasoning

Section 41 of the Employment Act requires notification and a hearing before termination. The respondent produced a letter dated 17th May 2014 inviting the claimant to a disciplinary hearing and asserted he failed to attend, but there was no proof the claimant actually received the invitation. The termination letter's reference to the claimant's representation did not cure this gap, so procedural fairness was not met.

p. 3
02

Substantive fairness - valid reason for termination

Holding

Not expressly decided; the court concentrated on procedural unfairness

Reasoning

Section 43 requires valid reasons for termination. The respondent alleged the claimant colluded with drivers to syphon fuel and received bribes, relying on an M-Pesa statement of David Wafula. Wafula testified he gave the statement to the claimant over a business dispute, not to the respondent. The court's finding rested on procedural unfairness rather than an express determination on the validity of the reason.

p. 2
03

Entitlement to salary for 16 years to retirement age

Holding

Refused; anticipatory damages to retirement age are not payable

Reasoning

The claimant offered no evidence of his age and no proof of permanency, having no letter of appointment. The respondent's road construction contract with KeNHA was for 24 months. Following D.K. Njagi Mareta and Menginya Salim Murgani, the court held there is no permanency in employment and damages are limited to section 49 compensation. The claimant, having worked under one year, was awarded one month's salary.

p. 3

Legal principles established

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  • Where there is no proof that the employee received an invitation to a disciplinary hearing, the termination is procedurally unfair under section 41 of the Employment Act
  • There is no permanency in employment contracts and the law does not provide for a retirement age; damages are not awarded to the date of retirement
  • Even permanent and pensionable contracts can be terminated, and unfair termination attracts only compensation under section 49 of the Employment Act

Court orders

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  1. 1.Award of Kshs.31,666.70 being salary for days worked in May 2014
  2. 2.Award of one month's salary as compensation in the sum of Kshs.50,000/-
  3. 3.Claimant awarded 50% of his costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43 and 49)

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, "Chrispo Amudoli Sungu v Jiangxi Zhongmei Engineering Construction Ltd [2016] KEELRC 870 (KLR)", Case Analysis (2016). Cause No. 130 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/870/eng@2016-06-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.