Benjamin Nzamba Killei v Denis Mathew t/a Matbronze [2018] KEELRC 1220 (KLR)
The bottom line
#A Kenyan court awarded a 23-year employee 12 months' salary after his employer fired him without a hearing or proof of misconduct.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the claimant was unfair and unlawful
The termination was unfair and unlawful for lack of a valid and fair reason and absence of a disciplinary hearing
Section 45(2) requires the employer to prove both valid and fair reasons and fair procedure. Rw1 admitted the alleged copper loss had no evidence of actual loss, that the claimant never dealt with copper, and that the custodians of the copper store were Rw1 and Ms Catherine Everald. Rw1 also admitted no disciplinary hearing was accorded. Section 41's mandatory notification-and-hearing process was never observed, rendering the termination unfair under section 45.
Whether the employer could impose a salary cut in exchange for continued employment
No; terms of service cannot be changed without prior consultation and the employee's consent, and no justification for the pay cut was shown
Under section 10(5), an employer has no right to change terms of service without prior consultation. The claimant had the right to decline the pay cut, and the respondent had no right to dismiss him unfairly for declining. No justification was shown; indeed Rw1 admitted the alleged loss was without evidence and that the claimant never dealt with copper.
Whether the claimant was entitled to compensation and terminal dues
12 months' gross salary (Kshs.576,000) awarded for unfair termination considering 23 years of service with no record of indiscipline; notice, leave and sick leave claims dismissed as already paid; service pay dismissed due to NSSF membership
Exercising discretion under section 49, the court considered the 23 years of unblemished service and awarded 12 months' salary as compensation. Dues already paid (Kshs.200,290 covering notice, September salary, leave and bonus) could not be re-awarded, and NSSF membership barred service pay under section 35(6).
Legal principles established
#- Termination of employment on account of misconduct without compliance with the notification and hearing requirements of section 41 of the Employment Act is unfair and unlawful under section 45
- An employer cannot unilaterally impose a salary cut or alter terms of service without prior consultation with and consent of the employee
- An employee who is a contributing member of NSSF is disqualified from service pay under section 35(6) of the Employment Act
Court orders
#- 1.Judgment entered for the claimant in the sum of Kshs.576,000 as compensation for unfair termination under section 49 of the Employment Act
- 2.Costs of the suit to the claimant
- 3.Interest on the awarded sum less statutory deductions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 45, 49, 35 and 10(5))
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Paul Kimeto Cheruiyot v Governor Narok County & 3 others [2020] KEELRC 972 (KLR)[2020] KEELRC 972 (KLR)4 Jun 2020
- John Kiptoo Lagatt v National Oil Corporation of Kenya [2019] KEELRC 2128 (KLR)[2019] KEELRC 2128 (KLR)27 Feb 2019
Cite this brief
#Cite this brief
Caselaw, "Benjamin Nzamba Killei v Denis Mathew t/a Matbronze [2018] KEELRC 1220 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1220/eng@2018-08-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.