Kelvin Karungu Karanja v Tusker Mattresses Limited [2017] KEELRC 1657 (KLR)
The bottom line
#Kenya's Employment Court awarded a manager over Kshs 1.1 million after Tusker Mattresses failed to follow proper procedure when terminating his job.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was substantively and procedurally fair
The termination was substantively and procedurally unfair. The letter did not make clear whether the ground was poor performance or abolition of office; no evidence showed performance issues were raised with the Claimant, and no Section 40 redundancy conditions were observed.
The termination letter cited dissatisfaction with performance of the Claimant's office but the court found ambiguity between personal poor performance and operational failure of the newly created office. The Respondent called no evidence. If poor performance, Section 41 mandatory procedure including a capability hearing was not followed; if abolition of office, the Section 40 redundancy conditions were not observed. Either way the termination was unfair under Section 45.
Entitlement to remedies
Compensation of three months' salary and severance pay for two completed years awarded; claims for salary and leave balances dismissed as unproved.
The court exercised discretion under Section 49 taking into account the Claimant's length of service (approximately two years) and the Respondent's conduct in the termination process. Severance was computed at fifteen days' pay per completed year. The monetary claims for June salary and leave pay balance failed for want of proof.
Legal principles established
#- An employer relying on poor performance must show the employee was made aware of specific shortcomings and given reasonable time and support to improve
- Poor performance grounds must be established through the mandatory procedure under Section 41 of the Employment Act, including a capability hearing
- Failure by an employer to observe the conditions in Section 40 of the Employment Act renders a redundancy termination unfair under Section 45
Court orders
#- 1.Judgment for the Claimant in the sum of Kshs. 850,965 being 3 months' salary in compensation for unfair termination
- 2.Severance pay for 2 completed years in the sum of Kshs. 283,655 (283,655/30x15x2)
- 3.Total judgment of Kshs. 1,134,620
- 4.Interest at court rates on the judgment amount from the date of judgment until payment in full
- 5.Costs of the case to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Labour Relations Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kelvin Karungu Karanja v Tusker Mattresses Limited [2017] KEELRC 1657 (KLR)", Case Analysis (2017). Cause No 1551 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1657/eng@2017-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.