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ELRCAllowedNot stated in the judgment excerpt· [2018] KEELRC 855 (KLR)

John Kiarie Ing’angi v Naisula Holdings Limited (Trading as Naisula School) [2018] KEELRC 855 (KLR)

Employment and Labour Relations Court
26 October 2018
946 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Nairobi court awarded a dismissed worker 12 months' salary because his employer couldn't prove why it fired him or follow fair procedure.

What this practically means

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Executive summary

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The claimant, employed by the respondent from mid-September 2012 as a grounds man and confirmed in January 2013, sued for notice pay, October 2015 salary, accrued leave, compensation for wrongful termination, and NSSF/NHIF contributions after his dismissal in October 2015. By consent, partial judgment was entered on 09.07.2018 for notice pay, October 2015 pay, NSSF and NHIF, leaving leave and compensation for full trial. At trial, the claimant testified he was dismissed without notice or hearing on 26.10.2015, shortly after requesting leave, and told to vacate within 30 minutes. The respondent alleged the claimant was involved in theft of school property with a co-worker, but its evidence was contradictory: no inventory of stolen items or occurrence book record was produced, and the respondent's witness gave shifting accounts of the claimant's role. The court found the respondent failed to establish a valid reason for termination under section 43 of the Employment Act, 2007, and failed to comply with section 41 on notice and hearing, rendering the termination unfair in substance and procedure. Applying section 49, and considering the claimant's three years of service, desire to remain employed, non-contribution to the termination, and aggravating circumstances, the court awarded 12 months' salary as compensation (Kshs. 420,000). The court also found the claimant was not accorded annual leave contrary to section 28 and awarded Kshs. 73,500. Judgment was entered for Kshs. 493,500 payable by 15.12.2018, failing which interest would run, plus costs of the suit to the claimant.

Key legal issues

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01

Whether the termination of the claimant's employment was unfair

Holding

The termination was unfair in both substance and procedure; the respondent failed to prove the reason for termination and to give notice and a hearing.

Reasoning

The court found the respondent's evidence contradictory and incoherent: no inventory of stolen items or occurrence book record was produced, and the witness's account of the claimant's alleged role in the theft shifted. The claimant's account was credible. Without proof of a valid reason (s.43) and without notice or disciplinary hearing (s.41), the dismissal was substantively and procedurally unfair.

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02

Quantum of compensation for unfair termination

Holding

The claimant was awarded 12 months' gross salary, Kshs. 420,000, under section 49 of the Employment Act, 2007.

Reasoning

The court considered that the claimant had served 3 years, desired to continue in employment, and did not contribute to the termination. Aggravating factors included that he left without terminal dues and had to vacate his housing accommodation within 30 minutes of dismissal.

p. 2
03

Whether the claimant was entitled to pay in lieu of 3 years' leave

Holding

Yes; the claimant was awarded Kshs. 73,500 as prayed for.

Reasoning

The respondent argued the claimant took leave during school vacations, but the claimant testified his maintenance work intensified during vacations and that his leave request preceded the termination. The court found the claimant trustworthy and held he was not accorded annual leave contrary to section 28 of the Act.

p. 2

Legal principles established

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  • An employer bears the burden of establishing the reason for termination under section 43 of the Employment Act, 2007 and compliance with notice and hearing under section 41.
  • Failure to accord an employee annual leave entitles the employee to pay in lieu of leave under section 28 of the Employment Act.

Court orders

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  1. 1.The respondent to pay the claimant Kshs. 493,500.00 by 15.12.2018 failing which interest to be payable from the date of judgment till full payment
  2. 2.The respondent to pay the claimant the costs of the suit

Authorities

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Legislation

  • Employment Actsection 43
  • Employment Actsection 41
  • Employment Actsection 49
  • Employment Actsection 28
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (constitutional/statutory provision not expressly cited in the excerpt)

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, "John Kiarie Ing’angi v Naisula Holdings Limited (Trading as Naisula School) [2018] KEELRC 855 (KLR)", Case Analysis (2018). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/855/eng@2018-10-26

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