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ELRCPartially AllowedCause No. 625 of 2015· [2018] KEELRC 191 (KLR)

Alice Wairimu Ngige v Antipest Kenya Limited [2018] KEELRC 191 (KLR)

Employment and Labour Relations Court
10 December 2018
HWHellen S. Wasilwa
1,815 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, Alice Wairimu Ngige, sued Antipest Kenya Limited claiming she was employed from April 2005 as a tea maker, earning Kshs. 16,250 gross per month, and that her services were wrongfully terminated on 26th June 2014 on account of redundancy without notice or payment of severance/terminal benefits. She sought notice pay, days worked, pro-rata and annual leave, gratuity, maximum compensation and costs, totaling Kshs. 378,690. The Respondent admitted the employment but described her as a sanitary bin lady/cleaner paid daily wages under the Regulation of Wages (General Order). It maintained she was terminated for misconduct - a carefree and defiant attitude, sleeping on the warehouse floor, rudeness and failure to wear proper uniform - following warnings and a disciplinary meeting on 25th/26th June 2014, and that terminal dues of Kshs. 47,865 were paid into her bank account. The Respondent prayed for dismissal of the suit with costs. The court found that the warning letters bore no address and there was no proof of delivery; no minutes or evidence of the alleged disciplinary hearing of 26th June 2014 were produced. Applying Section 45(2) of the Employment Act, the court held the employer failed to prove a valid reason and fair procedure, and that the dismissal without a hearing was unfair and unjustified. Noting the Claimant had already been paid leave for 3 years, one month's notice and two months' notice, the court awarded 10 months' salary (Kshs. 162,500) as compensation for unlawful termination, plus costs and interest at court rates from the date of judgment. The claim succeeded partially; redundancy-based reliefs were not granted.

Key legal issues

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01

Fairness of the termination - reason and procedure

Holding

The dismissal was unfair and unjustified because the Claimant was not accorded a hearing; the Respondent failed to prove a valid reason and fair procedure under Section 45(2) of the Employment Act

Reasoning

The court examined the Respondent's annexures. The warning letters bore no address and there was no indication of how they were delivered to the Claimant. The alleged disciplinary hearing of 26/6/2014 was not proved - no minutes were attached. Section 45(2) requires the employer to prove a valid and fair reason related to conduct, capacity or compatibility and that the termination followed fair procedure. Neither was established.

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02

Remedies for unfair termination

Holding

Having already received leave pay for 3 years, one month notice and two months notice, the Claimant was awarded 10 months' salary as compensation under Section 49 of the Employment Act

Reasoning

The court noted that at termination the Claimant had been paid leave for 3 years, one month's notice and another 2 months' notice. The only outstanding remedy was compensation for unlawful termination, computed at 10 months of her gross monthly salary of Kshs. 16,250, totalling Kshs. 162,500, plus costs and interest.

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03

Claim framed as redundancy and severance pay

Holding

The redundancy characterisation failed; the Respondent maintained, and the evidence showed, that termination was for alleged misconduct, and terminal dues had largely been paid

Reasoning

The Claimant pleaded termination on account of redundancy and non-payment of severance. The Respondent denied redundancy, asserting termination for disobedience and misconduct, and paid terminal benefits of Kshs. 47,865 into her bank account. The court found the remaining entitlement was compensation for unfair termination, not severance.

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Legal principles established

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  • An employer bears the burden of proving a valid reason and fair procedure for termination under Section 45(2) of the Employment Act; termination without a hearing is unfair
  • Warning letters and disciplinary hearings must be proved by documentary or other evidence; unaddressed letters with no evidence of service and no minutes of a hearing do not discharge that burden

Court orders

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  1. 1.Award of 10 months' salary as compensation for unlawful termination (10 x 16,250 = Kshs. 162,500)
  2. 2.Respondent to pay costs of the suit
  3. 3.Interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43(1)
  • Employment Act, 2007Section 45(1)
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 44(4)
  • Employment Act, 2007Section 35(6)(d)
  • Fair Administrative Actions Act, No. 4 of 2015Section 4(2)
  • Regulation of Wages (General Order)
Jurisdiction invoked
Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (inferred; not expressly cited in judgment) - claim brought under the Employment Act, 2007

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, "Alice Wairimu Ngige v Antipest Kenya Limited [2018] KEELRC 191 (KLR)", Case Analysis (2018). Cause No. 625 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/191/eng@2018-12-10

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