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ELRCPartially AllowedNot stated in judgment (Cause instituted 8 October 2012)· [2018] KEELRC 362 (KLR)

George Musyoka Muthui v Phoeni Papers Limited [2018] KEELRC 362 (KLR)

Employment and Labour Relations Court
7 December 2018
RSRadido Stephen
770 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled his firing was unfair because the employer gave no notice or hearing, awarding him Kshs 115,251 — but only for claims he actually proved.

What this practically means

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Executive summary

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The Claimant sued the Respondent in October 2012, complaining of termination on account of redundancy and failure to pay terminal benefits. The Respondent accepted service of summons but filed no Response. When the Cause came up for hearing, service of hearing notice upon the Respondent's advocates on record, Onesmus Langat & Co. Advocates, was attested despite the firm refusing to accept service; the Court noted the firm had not formally ceased acting and remained on record. The Claimant testified that he was employed in 2003 (contract dated 1 April 2004), rose to supervisor on 1 December 2011, and that on 1 March 2012 his employment was terminated without notice or an opportunity to be heard. The testimony went unchallenged. Applying sections 35(1)(c), 41 and 47(5) of the Employment Act, 2007, the Court found the termination unfair. Considering about 9 years of service and a gross monthly wage of Kshs 11,000/-, the Court awarded compensation equivalent to 9 months' gross wages (Kshs 99,000/-), one month's pay in lieu of notice per the appointment letter's termination clause (Kshs 9,483/-), and leave for the last 8 months to separation (Kshs 6,768/-), totalling Kshs 115,251/-. Leave was limited by section 28(4) to the 18 months before dismissal. Claims for underpayments, gratuity/service pay and overtime failed for want of proof; service pay was barred by NSSF contributions under section 35(5). The other reliefs were declined and the Claimant was denied costs for filing submissions late without explanation. Judgment was delivered in Nairobi on 7 December 2018 by Radido Stephen, Judge.

Key legal issues

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01

Unfair termination

Holding

Termination was unfair for want of notice and hearing

Reasoning

The Claimant testified he was terminated without notice or a hearing; the Respondent did not file a Response or challenge the evidence. Applying sections 35(1)(c) and 41 read with section 47(5) of the Employment Act, the Court found unfair termination established.

p. 1
02

Compensation for unfair termination

Holding

Equivalent of 9 months gross wages awarded based on length of service of about 9 years

Reasoning

In exercise of discretion under the Employment Act, the Court considered the roughly 9 years of service and awarded 9 months' gross wages at the gross monthly wage of Kshs 11,000/-, totalling Kshs 99,000/-.

p. 1
03

Leave

Holding

Award limited to leave accrued in the last 8 months to separation, Kshs 6,768/-

Reasoning

Section 28(4) of the Employment Act restricts leave claims to the 18 months preceding dismissal, so the Claimant could not claim leave for the entire employment period notwithstanding his unchallenged testimony that he never went on annual leave.

p. 2

Legal principles established

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  • Unchallenged testimony of an employee, considered with sections 35(1)(c), 41 and 47(5) of the Employment Act, suffices to establish unfair termination
  • Annual leave claims are limited by section 28(4) of the Employment Act to the 18 months preceding dismissal
  • An employee contributing to NSSF is not entitled to service pay under section 35(5) of the Employment Act

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unfair
  2. 2.Award of pay in lieu of notice of Kshs 9,483/-
  3. 3.Award of leave of Kshs 6,768/-
  4. 4.Award of compensation equivalent to 9 months gross wages of Kshs 99,000/-
  5. 5.Total award of Kshs 115,251/- to the Claimant
  6. 6.Other reliefs declined
  7. 7.Claimant denied costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and terminal benefits claim)

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, "George Musyoka Muthui v Phoeni Papers Limited [2018] KEELRC 362 (KLR)", Case Analysis (2018). Not stated in judgment (Cause instituted 8 October 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/362/eng@2018-12-07

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