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ELRCPartially AllowedCause No. 160 of 2015 (lead case in the series of Causes 160 to 174 of 2015)· [2016] KEELRC 1108 (KLR)

Irene Chepngetich Metet v County Government of Kericho [2016] KEELRC 1108 (KLR)

Employment and Labour Relations Court of Kenya
3 June 2016
1,952 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 an employer who can't prove the real reason for firing, and never involved the employee, must pay substantial compensation.

What this practically means

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Executive summary

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The claimant, employed as a Cleaner II and confirmed on 9th August 2009, was terminated on 14th November 2012 without notice or reasons. She sued the County Government of Kericho seeking a declaration that the termination was illegal, unlawful and irregular, condemnation under Section 49 of the Employment Act, general, aggravated and career-loss damages, notice pay and other reliefs. The respondent contended she was a seasonal employee laid off due to operational requirements following a staff rationalisation exercise occasioned by irregular employment, and that terminal dues were paid in full. The matter was consolidated with Causes 161 to 174 of 2015 with this cause as the lead case, and disposed of by written submissions. The court framed three issues: wrongfulness of the termination, entitlement to relief, and costs. It found the respondent had, apart from the termination letter produced by the claimant, adduced no evidence of the rationalisation decisions or the alleged irregularity of the claimant's employment, and that the claimant was not involved in the termination process, rendering it substantively and procedurally untenable. It therefore found wrongful, unfair and unlawful termination and awarded the declaration, eight months' salary as compensation, general damages of Kshs. 30,000, one month's salary in lieu of notice, aggravated damages of Kshs. 40,000, a certificate of service, with costs to the respondent, and issued parallel awards to the consolidated claimants. Costs of the series were to be met on the lead claim only.

Key legal issues

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01

Whether the termination was wrongful, unfair and unlawful

Holding

The termination was wrongful, unfair and unlawful because the respondent failed to prove the rationalisation decision or the alleged irregularity of employment, and did not involve the claimant in the process.

Reasoning

The respondent justified the termination on a staff rationalisation exercise and on the alleged irregular employment of the claimant. Apart from the letter of termination produced by the claimant, the respondent adduced no evidence of the meetings adopting the rationalisation policy nor demonstrated the irregularity alleged. The claimant was also not involved in the termination process. Both the substance and the procedure of the termination therefore failed, answering the first issue in the claimant's favour.

p. 3
02

Entitlement to relief

Holding

On a finding of unlawful termination the claimant became entitled to the relief sought, granted as a declaration, eight months' salary compensation, general damages, one month's notice pay and aggravated damages.

Reasoning

Having found the termination unlawful, the court held the claimant entitled to the relief sought. It applied Section 49-type compensation of eight months' salary, general damages of Kshs. 30,000, one month's salary in lieu of notice, aggravated damages of Kshs. 40,000 and a certificate of service, and issued parallel orders for the fourteen consolidated claimants.

p. 3
03

Burden of proof under Section 47(5) of the Employment Act

Holding

The respondent's invocation of Section 47(5) to place the entire burden on the claimant did not displace the employer's duty under Sections 43 and 45 to justify the grounds for termination.

Reasoning

The claimant relied on Section 47(5) which places the burden of proving unfair termination on the employee while the burden of justifying the grounds rests on the employer. The respondent argued a literal interpretation placing the onus on the claimant. The court found the respondent had failed to justify the grounds for termination under Sections 43 and 45, since no evidence of the rationalisation decision or the alleged irregularity was produced.

p. 2

Legal principles established

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  • Where an employer justifies termination on a rationalisation exercise and irregularity of employment but adduces no evidence of the decisions taken or the irregularity alleged, the termination fails substantively and procedurally.
  • An employee must be involved in the process of termination; failure to do so renders the termination substantively and procedurally untenable.

Court orders

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  1. 1.A declaration that the termination of the claimant's employment was illegal, unlawful and irregular
  2. 2.Eight months' salary as compensation for unlawful termination (Kshs. 19,005 x 8 = Kshs. 152,040.00 for the lead claimant)
  3. 3.General damages of Kshs. 30,000.00
  4. 4.One month's salary in lieu of notice (Kshs. 19,005.00 for the lead claimant)
  5. 5.Aggravated damages of Kshs. 40,000.00
  6. 6.The respondent to issue the claimant with a certificate of service
  7. 7.Costs of the claim borne by the respondent
  8. 8.Costs of the claims in the consolidated series met in respect of the lead claim only
  9. 9.Parallel relief awarded to the other claimants in the consolidated series (Philemon Kirui, Caroline Chepkoech, Samuel Arap Siele, Hillary Koech, Betty Kirui, Mutai Simon Kiprotich, Gilbert Kibet Kirui, John Bett, Philemon Bett, Joseph Maritim, Jackline Cherotich, Silvester Kipyegon, Stephen Kimetto and Caroline Chepkorir) on the same pattern

Authorities

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Legislation

  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45(2)(a) and (b)
  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 49

Cases cited (2)

  • Sarah Wanyaga Muchiri v Henry Kathii & another
    (2014) eKLR
  • British Leyland UK Ltd v Swift
    (1981) IRLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007)

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, "Irene Chepngetich Metet v County Government of Kericho [2016] KEELRC 1108 (KLR)", Case Analysis (2016). Cause No. 160 of 2015 (lead case in the series of Causes 160 to 174 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1108/eng@2016-06-03

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