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ELRCPartially AllowedCause No. 934 of 2012· [2016] KEELRC 1364 (KLR)

Daniel Warinda v Kenya Bureau of Standards [2016] KEELRC 1364 (KLR)

Employment and Labour Relations Court
7 April 2016
HWHellen S. Wasilwa
945 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer must both state and prove valid reasons for dismissal and follow fair procedure, or pay up to 12 months' salary.

What this practically means

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Executive summary

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The Claimant, Daniel Warinda, was employed by the Kenya Bureau of Standards from 1996 as subordinate staff, rising to Accountant earning a gross monthly salary of Kshs 24,125. He was dismissed on 15 April 2009 by a letter invoking the Respondent's HR Policy Manual and section 44(4)(g) of the Employment Act, which concerns dismissal for committing a criminal offence to the substantial detriment of the employer. The Claimant contended the dismissal rested on fabricated charges of attempted fraud, over which he was charged and acquitted after the court found he had no case to answer. He claimed notice pay, unpaid days, prorata leave, damages for unfair termination, illegal deductions and a certificate of service, totaling Kshs 611,168. The Respondent maintained the dismissal was lawful and procedural, that all dues were paid, and noted a pending similar suit in High Court Petition No. 61/2010. The court, deciding on written submissions, framed three issues: valid reasons, due process, and remedies. Applying sections 43, 41 and 45(2) of the Employment Act, the court held the Respondent failed to state and prove valid reasons for termination and failed to follow due process, rendering the dismissal unfair. The court found for the Claimant, awarding one month's notice pay (Kshs 24,125), 12 months' salary for unlawful termination (Kshs 289,500), leave as pleaded (Kshs 8,042), a certificate of service, and costs of the suit. The claim succeeded only in part, as the pleaded illegal deductions were not awarded.

Key legal issues

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01

Whether there were valid reasons to terminate the Claimant

Holding

The Respondent failed to set out and prove any valid reason for the termination as required by section 43 of the Employment Act.

Reasoning

The dismissal letter did not state the reason for dismissal; the criminal-offence ground was only discernible by reference to section 44 of the Employment Act. Section 43 places the burden on the employer to prove the reasons it genuinely believed existed at the time of termination. The Respondent adduced no proof of any reason, so the termination is deemed unfair within the meaning of section 45.

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02

Whether due process was followed before the Claimant's termination

Holding

No due process was followed; the dismissal was unfair and unjust under section 45(2) of the Employment Act.

Reasoning

Section 41 requires an employer, before terminating on grounds of misconduct, to explain the reasons to the employee in a language the employee understands and to hear and consider any representations. The Respondent did not comply with these procedural requirements. Combined with the failure to prove valid reasons, the dismissal fails both the substantive and procedural limbs of section 45(2).

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What remedies the Claimant is entitled to

Holding

The Claimant was awarded one month's salary in lieu of notice, 12 months' salary for unlawful termination, leave as pleaded, a certificate of service and costs.

Reasoning

Having found the termination unfair, the court assessed compensation at 12 months' gross salary of Kshs 24,125 per month, plus notice pay and prorata leave as pleaded, and directed issuance of a certificate of service. The claim totaling Kshs 611,168 was thus only partially successful.

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Legal principles established

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  • The employer must both state and prove the reasons for termination, failing which the termination is deemed unfair under section 45 of the Employment Act.
  • Failure to give reasons and follow due process before dismissal renders the dismissal unfair and unjust under section 45(2) of the Employment Act.

Court orders

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  1. 1.Payment of one month's salary in lieu of notice of Kshs 24,125
  2. 2.Payment of 12 months' salary for unlawful termination of Kshs 289,500
  3. 3.Payment of leave as pleaded of Kshs 8,042
  4. 4.Issuance of a Certificate of Service
  5. 5.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSection 45(2)
  • Employment ActSection 44(4)(g)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment 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, "Daniel Warinda v Kenya Bureau of Standards [2016] KEELRC 1364 (KLR)", Case Analysis (2016). Cause No. 934 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1364/eng@2016-04-07

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