Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 195 of 2015· [2016] KEELRC 1226 (KLR)

Elias Benedict Mahaga v Northern Nomadic Disabled Persons Organisation [2016] KEELRC 1226 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
18 March 2016
1,166 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

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

#
The Claimant, employed by the Respondent as a Project Officer on 1st April 2014 at a monthly salary of Kshs.20,000.00, alleged that he was terminated on 9th September 2015 without notice or a hearing after being falsely accused of soliciting funds from a supplier while following up on project payments. The Respondent never entered appearance or filed a defence despite repeated service, with affidavits of service filed in June, December 2015 and March 2016, so the Claimant's evidence was heard undefended. The court held that suspension exists to enable an employer to investigate, after which the employee must be recalled for a hearing and issued a show cause letter, citing its prior decisions in Godfrey Odongo v CFC Life Assurance and Peter Kamwi v Standard Group Ltd. Even in cases of gross misconduct, section 41(2) of the Employment Act mandates a hearing unless the employer proves exceptional circumstances made that impossible. Finding no evidence of due process, the court declared the Claimant unfairly terminated and awarded compensation of 12 months' gross salary (Kshs.240,000.00) and notice pay of Kshs.20,000.00 under section 35. However, the claim for payment for the unexpired term of the fixed-term contract failed because the Claimant did not attach the written contract, and proving its term remained his duty even in default proceedings. The Claimant was also to be issued a Certificate of Service under section 51. Judgment was delivered at Nairobi on 18th March 2016 by M. Mbaru, Judge.

Key legal issues

#
01

Procedural fairness in termination

Holding

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.

Reasoning

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.

p. 2
02

Notice pay under section 35

Holding

Termination without the notice required under section 35 of the Employment Act entitles the employee to payment in lieu of notice.

Reasoning

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.

p. 2
03

Unexpired term of a fixed-term contract

Holding

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.

Reasoning

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.

p. 2

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. 1.Judgment entered for the Claimant with a declaration that he was unfairly terminated
  2. 2.Compensation awarded at 12 months gross salary, Kshs.240,000.00
  3. 3.Notice pay awarded at Kshs.20,000.00
  4. 4.The Claimant to be issued with a Certificate of Service under section 51 of the Employment Act

Authorities

#

Legislation

  • Employment Actsection 41(1)
  • Employment Actsection 41(2)
  • Employment Actsection 42(1)
  • Employment Actsection 43
  • Employment Actsection 35
  • Employment Actsection 18
  • Employment Actsection 49
  • Employment Actsection 51

Cases cited (2)

  • Godfrey Odongo versus CFC Life Assurance
    Cause No.1001 of 2012
  • Peter Kamwi versus Standard Group Ltd
    Cause No.176 of 2015
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.