Faith Wanjiku Macharia v Forum for African Women Educationalist Kenya Chapter [2019] KEELRC 477 (KLR)
The bottom line
#A Kenyan court ruled that employees terminated before 2007 had no right to a hearing, but won notice pay and unpaid salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unlawful and unfair for want of a disciplinary hearing
The termination occurred on 25 January 2008, before the Employment Act 2007 procedural fairness regime applied; under the then-applicable Employment Act 1976 the employer was not obliged to give a hearing, so no unfair termination was established
The court identified the governing statute as the Employment Act 1976 (now repealed). Relying on Radido J in Chitavi, it noted that prior to the 2007 Act the right to a hearing was not part of the employment contract unless incorporated by staff manuals or policies; an employer could dismiss on notice or payment in lieu. The claimant's disciplinary-procedure complaints therefore could not found a claim for unfair termination. Only notice pay and unpaid salary were recoverable.
Whether the Claimant was entitled to notice pay and unpaid January 2008 salary
Entitled to one month's salary in lieu of notice (Kshs.83,300) and salary for 25 days worked in January 2008 (Kshs.80,096), totalling Kshs.163,396 with interest from the date of judgment
The Respondent's witness confirmed in cross-examination that the Claimant was not given notice as contemplated by section 36 of the Employment Act, entitling her to payment in lieu. She worked 25 days in January 2008 and was never paid her terminal dues. The court applied section 16 of the repealed Act on payment of wages in lieu of notice and awarded the computed sums with interest.
Whether the report and email published by the Respondent were defamatory
The claim for defamation failed; the Claimant did not prove defamation
The Claimant alleged that the audit report of 18 December 2007 and the email of 28 January 2008 carried defamatory imputations and claimed exemplary damages. The court found she did not prove the elements of defamation and dismissed the prayer. The Respondent had defended the publications as true and privileged, and the Claimant led no witness evidence on injury to reputation.
Legal principles established
#- Under the Employment Act 1976 (repealed), an employer was under no obligation to give an employee a hearing before terminating employment; procedural fairness was introduced by section 41 of the Employment Act 2007 and does not apply retrospectively
Court orders
#- 1.Award of one month's salary in lieu of notice of Kshs.83,300
- 2.Award of salary for 25 days worked in January 2008 of Kshs.80,096
- 3.Total award of Kshs.163,396 with interest at court rates from the date of judgment
- 4.Dismissal of the prayers for damages for breach of contract and exemplary damages for defamation
- 5.The Respondent to pay the Claimant's costs
- Jurisdiction invoked
- Not stated in the judgment; the court exercised its jurisdiction as the successor to the Industrial Court over an employment dispute under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Faith Wanjiku Macharia v Forum for African Women Educationalist Kenya Chapter [2019] KEELRC 477 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/477/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.