Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 2199 of 2014· [2019] KEELRC 720 (KLR)

Clement Muia Kiio v Copy Cat Limited [2019] KEELRC 720 (KLR)

Employment and Labour Relations Court
17 September 2019
1,586 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer was ordered to pay over KShs. 622,000 after firing an employee without a disciplinary hearing or proof of wrongdoing.

What this practically means

#

Executive summary

#
The Claimant, employed as a Sales Executive from 1 June 2011 and earning KShs. 55,608 at termination, sued claiming salary arrears, notice pay, untaken leave, service pay, and 12 months' compensation for unfair termination, after his employment was terminated on 30 June 2014 following a suspension over alleged losses of about KShs. 160,459. The Respondent filed a Reply and Counterclaim asserting the termination was lawful, that the Claimant shared his password enabling embezzlement, and sought the alleged loss with interest. RW1 conceded that the letter lifting the suspension did not indicate ongoing investigations and that minutes or invitations to disciplinary hearings could not be produced; RW2 conceded an exhibit showed the Claimant was not involved in one transaction, and the incident was never reported to police. The court found no investigations report was placed before it and the Claimant was never called to a disciplinary hearing, so the Respondent proved neither a valid reason nor fair process under sections 41 and 45(2) of the Employment Act. The termination was held unfair and unjustified. The court awarded one month's salary in lieu of notice (KShs. 50,000), 39 days' untaken leave (KShs. 72,290.40), and 10 months' salary as compensation (KShs. 500,000), totaling KShs. 622,290.40 less statutory deductions, plus costs and interest at court rates from the date of judgment. The Respondent's counterclaim was not awarded, and service pay was excluded given the Claimant's NSSF membership. Judgment delivered by Hellen Wasilwa, J, on 17 September 2019.

Key legal issues

#
01

Validity of reason for termination

Holding

The Respondent failed to establish a valid reason for the termination.

Reasoning

The Respondent alleged the Claimant's password was used to create and cancel sales causing losses of about KShs. 156,399. Yet no investigations report was produced in court, one of the Respondent's own exhibits indicated the Claimant was not involved in one transaction, and the incident was never reported to the police. The burden of proving a valid reason under section 45(2)(a) was therefore not discharged.

p. 3
02

Fair procedure under section 41 of the Employment Act

Holding

The Respondent did not follow fair procedure before terminating the Claimant.

Reasoning

The suspension was lifted unconditionally on 6 May 2014 with no indication that investigations remained ongoing. The termination letter then introduced a new assertion that investigations had continued. The Claimant was never called to any disciplinary hearing to answer charges, and RW1 conceded she could not produce minutes or evidence of invitations to any hearings. The procedural requirements of section 41 were therefore not met.

p. 3
03

Unfair termination and relief

Holding

The termination was unfair and unjustified; the Claimant was awarded notice pay, unpaid leave and 10 months' compensation.

Reasoning

Relying on section 45(2) of the Employment Act, the court held the termination unfair because the employer proved neither a valid reason nor fair procedure. The court then assessed remedies: one month's salary in lieu of notice at the basic salary of KShs. 50,000, payment for 39 untaken leave days of KShs. 72,290.40, and compensation of 10 months' salary totalling KShs. 500,000, all less statutory deductions, plus costs and interest.

p. 3

Legal principles established

#
  • An employer who terminates employment must prove both a valid and fair reason and adherence to fair procedure; failure on either renders termination unfair under section 45(2) of the Employment Act.
  • An employer alleging losses caused by an employee must place evidence of the investigations and their findings before the court, and an employee must be called to a disciplinary hearing to answer the charges.

Court orders

#
  1. 1.1 month's salary in lieu of notice of KShs. 50,000
  2. 2.Unpaid leave of 39 days at KShs. 72,290.40
  3. 3.10 months' salary as compensation for unlawful and unfair termination (KShs. 50,000 x 10 = KShs. 500,000)
  4. 4.Total award of KShs. 622,290.40 less statutory deductions
  5. 5.Respondent to pay costs of the suit plus interest at court rates with effect from the date of judgment

Authorities

#

Legislation

  • Employment Actsection 41
  • Employment Actsection 45(2)
  • Employment Actsection 35(6)

Cases cited (5)

  • Nicholus Muasya Kyula vs. Farmchem Limited
    [2012] eKLR
  • Bernard Ngugi vs. G4S Security Services Kenya Limited
    [2013] eKLR
  • Elijah Aggrey Atsali vs. Nairobi City Water and Sewerage Company
    [2015] eKLR
  • Sophia Wambui Muthoni vs. Muramati Sacco Society Limited
    [2014] eKLR
  • Elijah Kipkoros Tonui vs. Ngara Opticians T/A Bright Eyes Limited
    [2014] eKLR
Jurisdiction invoked
First-instance claim under the Employment Act, 2007 (sections 41, 45(2), 35(6))

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Clement Muia Kiio v Copy Cat Limited [2019] KEELRC 720 (KLR)", Case Analysis (2019). Cause No 2199 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/720/eng@2019-09-17

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