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ELRCPartially AllowedCause No. 1563 of 2010· [2018] KEELRC 1332 (KLR)

Hussein Yahya Sebit v Islamic Foundation [2018] KEELRC 1332 (KLR)

Industrial Court of Kenya at Nairobi
25 July 2018
DMD. K. Njagi MareteMOMaureen Onyango
2,217 words in judgment
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The bottom line

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A Kenyan court ruled a bookshop attendant's dismissal unlawful because his employer never gave him a hearing, awarding him Kshs.94,500 plus costs.

What this practically means

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Executive summary

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The claimant, employed by the respondent around June 2007 as a bookshop attendant earning Kshs.10,500.00 per month, sued for wrongful and unfair termination of employment on 1st February 2010 and for terminal benefits totalling Kshs.315,318.00, plus 12 months' compensation, costs and interest. The respondent denied the claim, asserting the claimant was summarily dismissed for gross misconduct including unauthorised removal of books, failure to account for book sales, and jointly exporting books worth Kshs.1,490,596 to Uganda, and filed a counter-claim. The parties agreed to determination by written submissions on 16th April 2018. The claimant filed no submissions. The court framed four issues: lawfulness of the termination, the counter-claim, entitlement to relief, and costs. On the first issue, the court held that although the claimant did not substantively demonstrate unlawful termination, the respondent equally failed to comply with sections 41(1) and (2) of the Employment Act, 2007 - no explanation of grounds, no hearing of representations and no disciplinary proceedings - rendering the termination substantively and procedurally unfair. The counter-claim failed for want of evidence. The claimant was awarded one month's pay in lieu of notice (Kshs.10,500.00) and eight months' compensation for unlawful termination (Kshs.84,000.00), totalling Kshs.94,500.00. Costs were awarded to the claimant and assessed at Kshs.30,000.00.

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 for want of substantive and procedural fairness under sections 41 and 43 of the Employment Act, 2007.

Reasoning

The claimant did not substantively demonstrate unlawful termination, but the respondent equally failed to establish compliance with section 41(1) and (2) of the Employment Act, which requires an explanation of grounds and hearing of representations before termination on grounds of misconduct. There was no evidence of any disciplinary proceedings. Absence of appropriate disciplinary proceedings culminated in unlawful termination of employment.

p. 4
02

Whether the respondent was entitled to its counter-claim

Holding

The counter-claim failed for want of evidence.

Reasoning

The counter-claim alleging gross misconduct, including theft of books, failure to account for book sales and fraudulent export of books to Uganda, was denied by the claimant and was not demonstrated by any evidence adduced by the respondent. It remained a mere pleading and failed from the onset.

p. 4
03

Whether the claimant was entitled to the relief sought

Holding

Having succeeded on unlawful termination, the claimant was entitled to relief, granted as notice pay and 8 months' compensation.

Reasoning

The court found the claimant had won on unlawful termination and was therefore entitled to relief. It awarded one month's pay in lieu of notice at Kshs.10,500.00 and eight months' compensation at Kshs.10,500.00 per month, totaling Kshs.94,500.00, together with costs assessed at Kshs.30,000.00 against the respondent.

p. 4

Legal principles established

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  • Termination of employment lapses where the employer fails to observe substantive and procedural fairness under sections 41 and 43 of the Employment Act, including absence of disciplinary proceedings.
  • A counter-claim unsupported by evidence fails and cannot succeed.

Court orders

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  1. 1.One (1) month's pay in lieu of notice of Kshs.10,500.00
  2. 2.Eight (8) months compensation for unlawful termination of employment of Kshs.84,000.00 (Kshs.10,500.00 x 8)
  3. 3.Total award of Kshs.94,500.00 to the claimant
  4. 4.The costs of the claim to be borne by the respondent
  5. 5.Costs of the claim assessed at Kshs.30,000.00

Authorities

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Legislation

  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007sections 35, 36 and 45
  • Employment Act, 2007sections 41(1) and (2)
  • Employment Act, 2007section 43
  • Evidence Act, Chapter 80, Laws of Kenyasection 107
Jurisdiction invoked
Employment and labour relations jurisdiction over a claim of wrongful and unfair termination of employment and terminal benefits 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, "Hussein Yahya Sebit v Islamic Foundation [2018] KEELRC 1332 (KLR)", Case Analysis (2018). Cause No. 1563 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1332/eng@2018-07-25

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