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. 1954 of 2014· [2016] KEELRC 1551 (KLR)

Kiti Soso v Insight Management Consultants Ltd [2016] KEELRC 1551 (KLR)

Employment and Labour Relations Court of Kenya
25 February 2016
2,453 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that firing an employee for taking a rest day was unfair, awarding notice pay, three months' compensation and costs.

What this practically means

#

Executive summary

#
The Employment and Labour Relations Court at Nairobi (M. Mbaru, J) determined a claim by Kiti Soso against Insight Management Consultants Ltd arising from his summary dismissal on 8th October 2014 after he took what he said was his rest day on Sunday 5th October 2014. The claimant, employed on a renewable one-year contract from 17th June 2013 at a salary of Kshs.17,325, alleged the dismissal was malicious, in breach of contract and statutory duty, with no reasons, no termination letter and no hearing, and sought notice pay and compensation totalling Kshs.225,225 plus costs. The respondent, though absent at hearing, filed a defence asserting the claimant could not unilaterally fix his rest day under a shift-based contract, that he had a prior warning for absence on 7th May 2014, and that the summary dismissal required no notice or letter. The court found the reason for dismissal was the taking of the rest day, but the respondent led no evidence proving that day was not allocated to the claimant. Applying sections 41, 43, 45 and 49 of the Employment Act, the court held the employer must prove misconduct, give reasons and afford a hearing; dismissal at will is no longer tenable, and the failure to give notice, reasons and a termination letter under the guise of summary dismissal was an unfair labour practice. The dismissal was held substantively and procedurally unfair. Judgment was entered for the claimant with compensation of Kshs.51,975 (three months' gross pay, reduced from the claimed twelve months due to the unchallenged prior warning), notice pay of Kshs.17,325, and costs.

Key legal issues

#
01

Whether the reasons for summary dismissal were valid and fair under sections 43 and 45 of the Employment Act

Holding

The respondent failed to prove that the claimant's taking of his rest day on 5th October 2014 was unjustified; the dismissal was substantively unfair.

Reasoning

Section 43 requires the employer to prove the misconduct relied upon. Although the contract allowed the employer to allocate rest days within a shift system, the employer led no evidence showing the 5th October 2014 was not the claimant's allocated day off or how it was compensated. Dismissal on the basis of a unilaterally taken rest day is therefore not a valid and fair reason under section 45.

p. 3
02

Whether the dismissal was procedurally fair under section 41 of the Employment Act

Holding

The dismissal was procedurally unfair; no notice, reasons or termination letter were issued, and a hearing as contemplated by the Act was not demonstrated.

Reasoning

The court held that procedural fairness requires the employee to be given notice, reasons and a hearing before termination. The respondent's defence that a termination letter was unnecessary in a summary dismissal contradicts sections 41 and 43. The sanction of dismissal for taking a rest day was too harsh in the circumstances.

p. 4
03

Entitlement to remedies - notice pay and compensation under section 49

Holding

Notice pay of one month (Kshs.17,325) and compensation of 3 months' gross pay (Kshs.51,975) awarded, reduced from 12 months due to the prior warning letter.

Reasoning

Clause 8 of the contract provided one month's notice, so notice pay is due upon a finding of unprocedural dismissal. Compensation under section 49 must consider section 45(5)(b) and (f) factors, including the employee's conduct and prior warning letters. The unchallenged warning of 7th May 2014 justified reducing compensation from 12 to 3 months.

p. 4

Legal principles established

#
  • An employer cannot dismiss an employee at will; the employer must justify and prove valid and fair reasons for termination under section 45 of the Employment Act.
  • Where an employer controls the allocation of rest days under the contract, it bears the duty to prove the employee's rest day was not allocated; dismissal on the basis the employee took a rest day unilaterally is insufficient.
  • Failure to issue reasons and a termination letter under the guise of summary dismissal is an unfair labour practice and cannot justify dismissal.

Court orders

#
  1. 1.Judgment entered for the claimant against the respondent for unfair termination
  2. 2.Compensation awarded at Kshs.51,975.00 (3 months' gross pay)
  3. 3.Notice pay awarded at Kshs.17,325.00
  4. 4.Costs of the suit awarded to the claimant

Authorities

#

Legislation

  • Employment Actsection 43
  • Employment Actsections 41 and 43
  • Employment Actsection 45
  • Employment Actsection 45(5)(b) and (f)
  • Employment Actsection 49

Cases cited (1)

  • David Gichana Omuya versus Mombasa Maize Millers Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment cause)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Kiti Soso v Insight Management Consultants Ltd [2016] KEELRC 1551 (KLR)", Case Analysis (2016). Cause No. 1954 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1551/eng@2016-02-25

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