Duncan Mbarire v Nairobi Aviation College Limited [2016] KEELRC 1131 (KLR)
The bottom line
#A Kenyan employer that fired a worker without notice or a hearing was ordered to pay compensation, because fair dismissal requires both a valid reason and a fair process.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant's employment was wrongful, unfair and unlawful
Yes - the termination was wrongful, unfair and unlawful
The claim was undefended despite service, so the claimant's uncontroverted evidence stood as the truth. The claimant testified he was never given notices to show cause nor heard before termination. Under sections 41, 43 and 45 of the Employment Act the employer must prove a valid reason and follow fair procedure; the respondent offered no rebuttal, so there was neither substantive justification nor procedural fairness.
Whether the claimant is entitled to the relief sought
Partially - the court granted a declaration, notice pay, six months' compensation, pending wages and a certificate of service, rather than the twelve months and other heads claimed
Although the claimant sought twelve months' wages under section 49(c) plus leave dues, service pay, house allowance, overtime and underpayment, the court in its discretion awarded six months' compensation, one month's notice pay and pending wages for nine days, and ordered a certificate of service within fourteen days.
Who bears the costs of the cause
The respondent, having unsuccessfully defended nothing, bears the costs
The claim succeeded on liability; the respondent neither appeared nor rebutted the claim. The court exercised its discretion on costs against the respondent and also in effect declined interest as not expressly ordered in the final orders.
Legal principles established
#- An undefended claim, where service is proved, is unrebutted and passes for the truth
- Termination without notice to show cause or a hearing is unfair for want of substantive justification and procedural fairness
Court orders
#- 1.Declaration that the dismissal of the claimant by the respondent was unlawful, unprocedural and unfair
- 2.One month's salary in lieu of notice - Kshs. 9,000.00
- 3.Six months compensation for unlawful termination of employment - Kshs. 54,000.00
- 4.Pending wages for 9 days in August 2015 - Kshs. 2,700.00 (total award Kshs. 65,700.00)
- 5.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
- Employment and labour relations dispute under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Duncan Mbarire v Nairobi Aviation College Limited [2016] KEELRC 1131 (KLR)", Case Analysis (2016). Not stated in the judgment (Memorandum of Claim dated 4th November 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1131/eng@2016-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.