Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 1275 of 2011· [2016] KEELRC 1722 (KLR)

Pius Alukhaba Masengo v Haveli Restaurant Limited [2016] KEELRC 1722 (KLR)

Employment and Labour Relations Court
3 February 2016
HWHellen S. Wasilwa
1,344 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

#

A Kenyan court ruled that an employer who changed a worker's duties without consulting him, then fired him without a hearing, must pay a full year's salary.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent as a Storekeeper from 1 January 2004, claimed he was orally terminated without notice on 30 April 2010 after questioning an instruction from the Managing Director to perform cleaning work. He sought reinstatement, damages for unlawful termination and terminal dues including notice pay, severance, overtime, public holiday and weekend pay and leave travelling allowance. The Respondent maintained that it was entitled to assign him any duties, that he refused to clean the kitchen and absconded, and that his employment was lawfully terminated on 5 May 2010 for absenteeism amounting to gross misconduct, with service pay inapplicable due to NSSF membership. The court framed three issues: valid reasons, due process, and remedies. On the first, it held that assigning a storekeeper cleaning duties without consultation breached Section 10(5) of the Employment Act and the contract, so refusal was not insubordination, and the abscondment reason was an afterthought first raised in reply to a demand letter, failing the Section 43 burden on the employer. On the second, the Section 41 procedure of explanation and hearing representations was never followed, rendering the dismissal unfair and unlawful under Section 45(1) and (2). The court awarded one month's salary in lieu of notice (Kshs. 12,833/=), twelve months' salary as compensation (Kshs. 153,996/=), a certificate of service, and costs, but declined service pay on account of NSSF membership; reinstatement was not granted.

Key legal issues

#
01

Whether the employer gave valid reasons for terminating the Claimant

Holding

No valid reasons existed. Assigning a storekeeper cleaning duties without consultation breached the contract and Section 10(5) of the Employment Act, so refusal could not amount to insubordination; the alleged abscondment was an afterthought raised only in reply to the demand letter.

Reasoning

The Claimant was employed as a Storekeeper per the appointment letter. Under Section 10(5) any change to contractual matters requires consultation and written notice. The Respondent unilaterally assigned cleaning duties, breaching the contract and the statute. Refusal of such duties was not insubordination. The abscondment allegation was never communicated in a termination letter and appeared only after the advocate's demand notice, so under Section 43 the employer failed to prove genuine reasons existing at termination.

p. 2
02

Whether due process under Section 41 was followed

Holding

Due process was never followed; the termination was therefore unfair and unlawful under Section 45(1) and (2) of the Employment Act 2007.

Reasoning

Section 41 requires an employer to explain the reason for contemplated termination to the employee in a language he understands, allow an accompanying representative, and hear and consider representations before summary dismissal for misconduct. The court found this process was not followed at all, satisfying the test of unfair termination under Section 45.

p. 3

Legal principles established

#
  • A change in any matter stipulated in the employment contract must be done in consultation with the employee and notified in writing
  • The employer bears the burden of proving valid reasons for termination; failure to do so renders the termination unfair
  • Before termination for misconduct the employer must explain the reasons to the employee and hear representations, per Section 41 of the Employment Act

Court orders

#
  1. 1.1 month's salary in lieu of notice of Kshs. 12,833/= to the Claimant
  2. 2.12 months' salary as compensation for unlawful termination of employment, Kshs. 153,996/= (total award Kshs. 166,829/=)
  3. 3.Claimant to be issued with a Certificate of Service
  4. 4.Respondent to pay costs of the suit

Authorities

#

Legislation

  • Employment ActSection 10(5)
  • Employment ActSection 41(1) and (2)
  • Employment ActSection 42(1)
  • Employment ActSection 43(1) and (2)
  • Employment Act 2007Section 44(3) and (4)
  • Employment Act 2007Section 45(1) and (2)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Pius Alukhaba Masengo v Haveli Restaurant Limited [2016] KEELRC 1722 (KLR)", Case Analysis (2016). Cause No. 1275 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1722/eng@2016-02-03

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