Duncan Mbarire v Nairobi Aviation College Limited [2016] KEELRC 1122 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant's employment was wrongful, unfair and unlawful
Yes. The claim was undefended despite service; the claimant's averments that he was not given notice, not heard, and not afforded section 41 procedure passed for the truth, so the termination lacked both substantive justification and procedural fairness.
The court relied on section 45 of the Employment Act, which places the burden on the employer to prove a valid and fair reason and fair procedure. Citing Walter Ogal Anuro v Teachers Service Commission, it adopted the twin requirements of substantive justification and procedural fairness. As the claim was not defended and no rebuttal was offered, the claimant's account - termination without notice, hearing or certificate of service - was accepted as established, and the court found wrongful, unfair and unlawful termination.
Whether the claimant is entitled to the relief sought
Entitled to relief, but the court exercised discretion to award one month's notice pay, six months' compensation under section 49(c), pending wages for 9 days in August 2015, and a certificate of service, rather than the full quantum claimed.
Upon a finding of unfair termination the court held the claimant entitled to the relief sought, but it did not award the full Kshs. 585,907.73 claimed (leave dues, service pay, house allowance, overtime, underpayment, breach of contract damages). It fixed compensation at six months' wages of Kshs. 9,000, ordered a certificate of service within fourteen days, and awarded costs to the claimant.
Who bears the costs of the cause
The respondent was ordered to bear the costs of the claim.
Having succeeded in establishing unfair termination against a respondent who did not defend the claim despite service, the claimant was granted costs, the court ordering that the costs of the claim be borne by the respondent.
Legal principles established
#- For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness
- Where a claim is undefended and the respondent offers no rebuttal, the claimant's uncontroverted case passes for the truth
- An employer who fails to prove a valid and fair reason and fair procedure terminates employment unfairly under section 45 of the Employment Act
Court orders
#- 1.A declaration that the dismissal of the claimant by the respondent was unlawful, unprocedural and unfair
- 2.One month's salary in lieu of notice of Kshs. 9,000.00
- 3.Six (6) months compensation for unlawful termination of employment, Kshs. 9,000.00 x 6 = Kshs. 54,000.00
- 4.Pending wages for 9 days in August, 2015 of Kshs. 2,700.00; total award Kshs. 65,700.00
- 5.The respondent to issue a certificate of service to the claimant within fourteen days of the orders of court
- 6.Costs of the claim to be borne by the respondent
- Jurisdiction invoked
- Original jurisdiction of the Industrial Court under the Employment Act, 2007 over a claim for unfair termination of employment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duncan Mbarire v Nairobi Aviation College Limited [2016] KEELRC 1122 (KLR)", Case Analysis (2016). Memorandum of Claim dated 4th November, 2015 (Industrial Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1122/eng@2016-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.