Moses Lasiti Lepere v Marula Estate Limited [2016] KEELRC 1477 (KLR)
The bottom line
#A Kenyan employer who sacks an employee without written notice and a fair hearing must pay compensation, even after five years of service.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in dismissal
The dismissal was devoid of procedural fairness because the Respondent did not conduct any hearing as required by section 41 of the Employment Act.
Section 41 imposes a statutory obligation on employers to conduct a hearing before termination, which may be by correspondence or face to face and need not be a formal mini-court event. The Claimant testified he was verbally told by the Livestock Manager that his services were no longer required, without a dismissal letter. The Respondent closed its case without calling any witnesses or tendering any documents, so no evidence remotely suggested compliance with the procedural fairness requirements. The court therefore found the dismissal procedurally unfair and did not consider it necessary to examine sections 43 and 45.
Notice pay
The Claimant was entitled to one month's pay in lieu of notice of Kshs 4,918/-.
The Claimant served for about 5 years and was paid monthly, so under section 35(1)(c) of the Employment Act he was entitled to at least 28 days written notice of termination. No written notice was given, satisfying the employee's test under section 47(5) to demonstrate unfair dismissal. The Claimant sought Kshs 4,918/- under this head and, having received no requisite notice, was entitled to it.
Compensation for unfair dismissal
The court awarded the equivalent of 6 months gross wages as compensation, considering the roughly 5 years of service.
Having concluded that the dismissal was unfair, the court considered the period of service (about 5 years) as the relevant factor in assessing compensation. The Claimant's June 2012 pay slip, filed by the Respondent, showed a gross wage of Kshs 9,279/- less leave travelling allowance and leave pay. On that basis the court awarded 6 months gross wages, amounting to Kshs 55,674/-, which together with the notice pay totalled Kshs 60,592/-.
Legal principles established
#- An employee employed to perform a task that will take or took at least one month, paid monthly, is entitled to at least 28 days written notice of termination under section 35(1)(c) of the Employment Act.
- Where an employee demonstrates lack of written notice, the burden under section 47(5) is satisfied to show unfair dismissal.
- An employer must, under section 41 of the Employment Act, conduct a hearing before termination, which may be by correspondence or face to face and need not be a mini-court event; failure to call any evidence of such a hearing renders dismissal procedurally unfair.
Court orders
#- 1.The Respondent to pay the Claimant 1 month pay in lieu of notice of Kshs 4,918/-
- 2.The Respondent to pay the Claimant compensation equivalent to 6 months gross wages of Kshs 55,674/-
- 3.Total award of Kshs 60,592/-
- 4.The Claimant to have costs of Kshs 15,000/-
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Lasiti Lepere v Marula Estate Limited [2016] KEELRC 1477 (KLR)", Case Analysis (2016). Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1477/eng@2016-04-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.