Elias Benedict Mahaga v Northern Nomadic Disabled Persons Organisation [2016] KEELRC 1226 (KLR)
The bottom line
#Kenya's Employment Court ruled an employee fired without a hearing was unfairly terminated and awarded him 12 months' salary, but he lost extra claims by not keeping his contract.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination
The termination was unfair because the Respondent followed no due process - no hearing, no show cause - and the unchallenged evidence established unfair termination for no just cause.
The court held that suspension is meant to enable investigations, after which the employee must be recalled for a hearing and given a show cause letter. Even in the worst case of gross misconduct, section 41(2) mandates a hearing unless the employer proves exceptional circumstances. The Respondent never entered appearance or filed a defence, so the court accepted the Claimant's uncontroverted evidence and found the termination unfair.
Notice pay under section 35
Termination without the notice required under section 35 of the Employment Act entitles the employee to payment in lieu of notice.
The Claimant was terminated without notice. The court stated that where termination occurs without the notice required under section 35, payment in lieu is due. It awarded one month's salary of Kshs.20,000.00 as notice pay, consistent with the stated monthly salary.
Unexpired term of a fixed-term contract
Although payment for the unexpired term can apply to a fixed-term contract under sections 18 and 49, the Claimant failed to prove the contract's term and this head of claim was refused.
The court acknowledged that in a fixed-term contract, sections 18 read with section 49 of the Employment Act apply and payment for the unexpired term is due. However, the Claimant did not attach the written contract, so the court could not assess its term. The burden of proving this head of claim rested on the Claimant notwithstanding the Respondent's default.
Legal principles established
#- An employee must be given a hearing before termination of employment; the requirement under section 41 of the Employment Act is mandatory, even for gross misconduct, unless the employer proves exceptional circumstances made a hearing impossible.
- Suspension is to enable the employer to investigate; a culpable employee must be recalled for a hearing and issued a show cause letter before termination.
Court orders
#- 1.Judgment entered for the Claimant with a declaration that he was unfairly terminated
- 2.Compensation awarded at 12 months gross salary, Kshs.240,000.00
- 3.Notice pay awarded at Kshs.20,000.00
- 4.The Claimant to be issued with a Certificate of Service under section 51 of the Employment Act
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 35, 41, 43, 49, 51 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elias Benedict Mahaga v Northern Nomadic Disabled Persons Organisation [2016] KEELRC 1226 (KLR)", Case Analysis (2016). Cause No. 195 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1226/eng@2016-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.