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ELRCPartially AllowedCause No. 24 of 2018· [2018] KEELRC 85 (KLR)

Erastus Kiyabi Simiyu v Balaji Flowers [2018] KEELRC 85 (KLR)

Employment and Labour Relations Court of Kenya
18 December 2018
MMM. Mbaru
825 words in judgment
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The bottom line

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A Kenyan court awarded a dismissed security guard pay because his employer fired him without notice or a hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent from May 2014 and last earning Ksh.16,500 per month as a security guard, alleged that in November 2017 he was verbally dismissed without notice, hearing, reasons or terminal dues. He filed a Memorandum of Claim on 2nd February 2018 seeking service pay for three years, pay for days worked, one month's notice pay, compensation, leave allowance for three years and costs. The respondent neither entered appearance nor filed a defence, and the court proceeded to hear the claimant ex parte under Article 50 of the Constitution and Rule 15 of the ELRC (Procedure) Rules, 2016. The court held that even where a notice to show cause was issued, the respondent was bound by the mandatory provisions of section 41 of the Employment Act, 2007 to give the claimant a hearing before termination; the unchallenged dismissal without notice, cause or fairness contravened sections 35, 41 and 43, constituting unfair termination redressible by compensation under sections 45 and 49. In the absence of a defence, the claimant's testimony was the only evidence before the court. The court awarded compensation of one month's pay (Ksh.16,500), notice pay (Ksh.16,500), leave pay in lieu for the last year served (Ksh.16,500) and pay for 11 days worked in November 2017 (Ksh.6,050), with costs of the suit. Service pay was refused because the claimant testified he was registered with NSSF. Judgment was dated and delivered at Nakuru on 18th December 2018 by M. Mbaru J.

Key legal issues

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01

Whether the termination was unfair for want of due process, cause and fairness

Holding

The unchallenged dismissal without notice or hearing was unfair, contrary to sections 35, 41 and 43 of the Employment Act, 2007, meriting compensation under section 49.

Reasoning

The respondent filed no appearance or defence, so the claimant's evidence stood unchallenged. Even where a notice to show cause was issued, the employer was bound to give a hearing before termination as mandated by section 41. Termination without due process, cause or fairness contravened sections 35, 41 and 43, and section 45 renders such termination unfair, with redress by compensation under section 49.

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02

Assessment of terminal dues in an undefended claim

Holding

Notice pay, one month's compensation, leave pay for the last year served and pay for 11 days worked were awarded; service pay was refused on account of NSSF registration.

Reasoning

Dues were assessed on the pleadings, evidence and submissions, based on the last paid wage of Ksh.16,500. Leave not taken under section 28 attracts payment in lieu for the year last served. The claim for days worked was clarified in submissions to 11 days in November 2017. Service pay was not due because the claimant was registered with NSSF.

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Legal principles established

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  • An employer terminating employment must comply with the mandatory procedural requirements of section 41 of the Employment Act, 2007 by giving the employee a hearing.
  • Where there is no defence, the unchallenged testimony of the claimant is the material upon which the court acts.

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for compensation at Ksh.16,500.00
  2. 2.Notice pay of Ksh.16,500.00
  3. 3.Leave pay of Ksh.16,500.00
  4. 4.Pay for 11 days worked in November 2017 at Ksh.6,050.00
  5. 5.Costs of the suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Employment and Labour Relations Court Act
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 15
  • Employment Act, 2007sections 28, 35, 41, 43, 45, 49
Jurisdiction invoked
Article 50 of the Constitution read together with the Employment and Labour Relations Court Act, 2011 and Rule 15 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Erastus Kiyabi Simiyu v Balaji Flowers [2018] KEELRC 85 (KLR)", Case Analysis (2018). Cause No. 24 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/85/eng@2018-12-18

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