Astley Mwanyale Kafulo v Medina Enterprises Limited t/a Medina Palms [2018] KEELRC 1127 (KLR)
The bottom line
#A Kenyan court ruled that hotel workers cannot be fired without due process, even on short fixed-term contracts that have continued past their end date.
What this practically means
#Executive summary
#Key legal issues
#Whether an employee whose employment continued past a pleaded nine-month fixed term contract could be terminated without due process
The Respondent's assertion that the Claimant was on a nine-month fixed term contract was unsupported by evidence since the Claimant was sent on leave and remained in employment past February 2017; he was therefore entitled to due process before termination, and compensation for unfair termination.
The Respondent admitted sending the Claimant on leave until 8th March 2017, the very date the termination letter was issued. This meant the Claimant remained in employment beyond the pleaded fixed term. The authority on automatic termination of fixed term contracts by effluxion of time was distinguished because in this case employment had continued past the pleaded term, so due process was required.
Whether the Claimant, with less than thirteen months' service, could claim compensation for unfair termination notwithstanding Section 45(3) of the Employment Act
The Court awarded compensation despite the Claimant not having attained the thirteen-month service threshold, persuaded that Section 45(3) is unconstitutional.
The Court acknowledged the service threshold under Section 45(3) but adopted the holding in Samuel G. Momanyi v Attorney General & another [2012] eKLR (Lenaola J) that the provision is unconstitutional, thus extending the statutory protection to the Claimant.
Quantum of compensation for unfair termination
Three months' salary, Kshs. 48,000, awarded, taking into account length of service and the Respondent's conduct in effecting termination.
The Court exercised discretion under the compensation framework, weighing the Claimant's short length of service and the Respondent's conduct, which included paying two months' salary in lieu of notice, to arrive at an award equivalent to three months' salary.
Legal principles established
#- Section 45(3) of the Employment Act, which limits compensation for unfair termination to employees with thirteen months' continuous service, is unconstitutional.
- An employee who remains in employment beyond a pleaded fixed term is entitled to due process prior to termination.
Court orders
#- 1.Award to the Claimant of Kshs. 48,000 being three (3) months' salary in compensation for unfair termination
- 2.Interest on the award at court rates from the date of judgment until payment in full
- 3.Costs of the case to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Astley Mwanyale Kafulo v Medina Enterprises Limited t/a Medina Palms [2018] KEELRC 1127 (KLR)", Case Analysis (2018). Cause No 18 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1127/eng@2018-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.