Samuel Maina Gichuhi v Nature Phamacy Limited & Ndubai Ngeera [2016] KEELRC 1831 (KLR)
The bottom line
#A Kenyan court awarded a pharmacy assistant Kshs.429,000 after his employer closed shop and dismissed him without notice, a letter, or any terminal benefits.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of termination on redundancy without notice
Termination was unlawful for want of procedural fairness under section 40 of the Employment Act
The claimant was employed since 1995 and on 1st October 2011 found the shop closing down and was asked to pack stock. He received no termination letter and no terminal benefits. The respondent did not file a defence and the claim proceeded by formal proof. The court found the closure amounted to redundancy without the section 40 procedure, rendering it ipso facto unlawful.
Compensation for unfair termination
Ten months' salary awarded as compensation under section 49(1)(c) as read with section 49(4)
The claimant served sixteen years with no adverse record, went home penniless without terminal benefits, and suffered loss and pain from the sudden, unprocedural loss of employment. These factors justified a substantial award of ten months' salary under section 49.
Leave pay claim
Claim for payment in lieu of leave days failed
The claimant conceded on his own evidence that he had no pending leave days, so this head of the claim was not proved despite the undefended suit.
Legal principles established
#- An employer who does not follow the redundancy procedure under section 40 of the Employment Act terminates employment ipso facto unlawfully for want of procedural fairness
- An employee terminated without notice for operational reasons is entitled to terminal benefits and compensation under section 49(1)(c) as read with section 49(4) of the Employment Act
Court orders
#- 1.One month salary in lieu of notice in the sum of Kshs.22,000
- 2.Fifteen (15) days salary for the month of October 2011 in the sum of Kshs.11,00
- 3.Severance pay at the rate of fifteen (15) days salary for sixteen (16) years completed service in the sum of Kshs.176,000.00
- 4.Ten (10) months salary as compensation for the unlawful and unfair termination of employment in the sum of Kshs.220,000.00
- 5.Total award of Kshs.429,000.00 payable against the 1st and 2nd respondents jointly and severally
- 6.Costs of the suit to the claimant
- 7.Interest at court rates from date of filing the suit until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Maina Gichuhi v Nature Phamacy Limited & Ndubai Ngeera [2016] KEELRC 1831 (KLR)", Case Analysis (2016). Memorandum of Claim dated 17th September 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1831/eng@2016-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.