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ELRCPartially AllowedCause No. 1699 of 2014· [2018] KEELRC 1328 (KLR)

Josephat Kaibi Linguya v Highland Canners Limited [2018] KEELRC 1328 (KLR)

Industrial Court of Kenya
25 July 2018
DMD. K. Njagi MareteMOMaureen Onyango
1,180 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 that paying an employee one month's salary in lieu of notice does not make a dismissal lawful without valid reasons and a fair hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a security officer from 13th January 1997 and earning Kshs.14,196.00 per month, challenged the termination of his employment by letter dated 30th April 2014 as wrongful, unfair, illegal, null and void ab initio for lack of notice or reason. He sought a declaration of wrongful dismissal, a certificate of service, special damages of Kshs.1,183,728.00 (comprising salary in lieu of notice, annual leave, service pay, gratuity, severance pay and twelve months' compensation), general and exemplary damages, interest and costs. The respondent denied unlawful termination, asserting the employment was lawfully terminated under section 35(1)(c) and section 36 of the Employment Act, 2007, and that the claimant signed a full and final settlement of Kshs.23,144.00 inclusive of one month's salary in lieu of notice. The court framed three issues: lawfulness of the termination, entitlement to relief, and costs. It held that section 36 is merely a 'distant limb' of lawful termination; substantive justification under section 43 and procedural fairness under section 41 are mandatory and were absent, making the termination unfair. The claim was partially allowed: a declaration of wrongful, unfair and unlawful dismissal issued, one month's salary in lieu of notice (Kshs.14,196.00) and ten months' salary as compensation (Kshs.141,960.00) awarded, with costs to the respondent. The claimant filed no written submissions.

Key legal issues

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01

Whether the termination of the claimant's employment was wrongful, unfair and unlawful

Holding

The termination was unlawful because the respondent relied solely on payment in lieu of notice without demonstrating substantive justification or procedural fairness.

Reasoning

The respondent relied on section 36 of the Employment Act and a signed full and final settlement acknowledging one month's salary in lieu of notice. The court held section 36 is only a 'distant limb' of lawful termination: sections 43 and 41 require valid reasons and a fair disciplinary hearing, which were absent. The respondent's reasoning was threadbare, so unlawful termination was established.

p. 2
02

Whether the claimant is entitled to the relief sought

Holding

Yes; having established unlawful termination, the claimant was awarded a declaration, one month's salary in lieu of notice and ten months' salary as compensation.

Reasoning

Having found unlawful termination, the court held the claimant entitled to relief. It issued a declaration that the dismissal was wrongful, unfair and unlawful, awarded one month's salary in lieu of notice (Kshs.14,196.00) and ten months' salary as compensation for unlawful termination (Kshs.141,960.00), totalling Kshs.156,156.00, plus costs against the respondent.

p. 3

Legal principles established

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  • Payment in lieu of notice under section 36 of the Employment Act alone does not make a termination lawful; there must also be substantive justification and procedural fairness under sections 43 and 41.

Court orders

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  1. 1.A declaration that the dismissal of the claimant's employment by the respondent was wrongful, unfair and unlawful
  2. 2.One (1) month's salary in lieu of notice of Kshs.14,196.00
  3. 3.Ten (10) months' salary as compensation for unlawful termination of employment, Kshs.14,196.00 x 10 = Kshs.141,960.00
  4. 4.The costs of the claim to be borne by the respondent
Jurisdiction invoked
Employment and labour relations dispute before the Industrial Court of Kenya 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, "Josephat Kaibi Linguya v Highland Canners Limited [2018] KEELRC 1328 (KLR)", Case Analysis (2018). Cause No. 1699 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1328/eng@2018-07-25

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