James Muchene Ngei v Stephen Viljoen & 2 others [2018] KEELRC 1502 (KLR)
The bottom line
#A sacked BOC Kenya manager won only three months' notice pay because his 2001 dismissal fell under the old Employment Act, which didn't allow unfair-termination compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the court could entertain a claim for compensation for unfair termination where the cause of action arose under the repealed Employment Act (Cap 226)
The court could not; under Cap 226 there was no compensation for unfair termination and an employee could be dismissed without reasons, so the claimant's remedy was limited to notice pay under his contract.
The court noted the suit was governed by the repealed Employment Act Cap 226, which had no provision for compensation for unfair termination, unlike the current Act. An employee could then be dismissed without any assigned reason, and damages, absent agreement, were equivalent to payment in lieu of notice. The claimant also failed to point to any provision in the HR manual entitling him to the compensation heads claimed, and admitted declining to attend the disciplinary inquiry.
Whether the claimant's conduct disentitled him from complaining of the dismissal procedure
The claimant admitted being invited to the disciplinary inquiry but declined to attend citing lack of preparedness, which undermined his claim of procedural unfairness.
The court observed that even if it had power to pronounce on the fairness of the termination, the claimant's own admission that he declined to attend the disciplinary inquiry, for which he was invited on 5th February 2001 and asked for more time, defeated his assertion that he was dismissed without due process. His evidence on cross-examination confirmed he was invited but chose not to attend.
Whether the respondent proved its counterclaim for Kshs 2,049,960 being the balance due on a housing loan
The counterclaim was disallowed for want of evidence.
Although the 3rd respondent counterclaimed for Kshs 2,049,960 as the balance due on a loan to buy a house, no evidence was tendered to prove the claim. The claimant in his evidence stated that he had paid all his liabilities to the respondent before leaving, and the respondent's witnesses did not establish the outstanding debt. The counterclaim therefore failed in its entirety.
Legal principles established
#- Where the cause of action accrued under the repealed Employment Act (Cap 226), the court cannot question the validity of the reasons for termination; the employee's remedy is confined to the contractual terms, such as payment in lieu of notice.
- A party asserting a counterclaim bears the burden of tendering evidence to prove it; an unproven counterclaim is disallowed.
Court orders
#- 1.The claimant to be paid three months' salary in lieu of notice of termination of service as per his contract of service
- 2.The respondent's counterclaim is disallowed
- 3.Each party shall bear its own costs
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court over employment and labour relation matters, following transfer from the High Court; cause of action governed by the repealed Employment Act (Cap 226)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Muchene Ngei v Stephen Viljoen & 2 others [2018] KEELRC 1502 (KLR)", Case Analysis (2018). Cause Number 2211 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1502/eng@2018-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.