Joseph Isiche Sikuku & 2 others v Hakika Transport Services Limited [2019] KEELRC 847 (KLR)
The bottom line
#A Kenyan court ruled that firing drivers without telling them the charges or letting them defend themselves was unfair, awarding each compensation, notice pay and leave.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the Claimants was substantively and procedurally unfair
The termination was substantively and procedurally unfair. Although the stated reason (absenteeism) would amount to gross misconduct if proved, the Respondent did not prove the accusations, and the Claimants were not informed of the charges or given time to prepare a defence.
The dismissal letters cited unauthorised absenteeism under section 44(4) of the Employment Act. The court found the disciplinary proceedings held on 23rd July 2015 did not meet the statutory threshold: the Claimants did not know why they had been summoned to the Human Resource Office, were unaware of the charges, and had no time to prepare their defence, contrary to sections 41 and 43. The Respondent therefore failed to prove a valid reason and to follow fair procedure.
Whether Section 45(3) of the Employment Act bars employees with less than 13 months' service from claiming unfair termination
The court was not persuaded by the Section 45(3) statutory bar, following the decision in Samuel G. Momanyi v Attorney General & another in which Section 45(3) was declared unconstitutional.
The Respondent argued that each Claimant served less than a year, invoking Section 45(3) which appears to lock out employees with fewer than 13 months of service. The court adopted Lenaola J's decision declaring that provision unconstitutional, thereby rejecting the bar as a defence to the Claimants' claims.
What remedies the Claimants are entitled to
Each Claimant was awarded two months' salary in compensation, one month's salary in lieu of notice, and prorata leave pay for the period worked.
In exercising its discretion on compensation, the court considered the Claimants' short service periods and the Respondent's conduct in terminating the employment. Notice pay and prorata leave were awarded as contractual/statutory entitlements flowing from the unfair termination.
Legal principles established
#- Establishment of a valid reason for termination of employment under Section 43 of the Employment Act is achieved at the shop floor, before the matter comes to court, and the employer must show the employee was made aware of the grounds for termination.
- Procedural fairness under Section 41 of the Employment Act requires that an employee facing disciplinary action be given clear prior information on the exact charges together with adequate time to prepare and present their defence.
Court orders
#- 1.Judgment entered in favour of the 1st Claimant, Joseph Isiche Sikuku, of Kshs. 112,594 (2 months' salary in compensation of Kshs. 63,900; 1 month's salary in lieu of notice of Kshs. 31,950; leave pay for 9 months of Kshs. 16,744)
- 2.Judgment entered in favour of the 2nd Claimant, Eliud Angong Akifude, of Kshs. 107,033 (2 months' salary in compensation of Kshs. 63,900; 1 month's salary in lieu of notice of Kshs. 31,950; leave pay for 6 months of Kshs. 11,183)
- 3.Judgment entered in favour of the 3rd Claimant, Oremo Edward Godfrey Eshitemi, of Kshs. 112,594 (2 months' salary in compensation of Kshs. 63,900; 1 month's salary in lieu of notice of Kshs. 31,950; leave pay for 9 months of Kshs. 16,744)
- 4.Interest at court rates on the awarded amounts from the date of judgment until payment in full
- 5.Costs of the case awarded to the Claimants
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (wrongful and unfair dismissal claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Isiche Sikuku & 2 others v Hakika Transport Services Limited [2019] KEELRC 847 (KLR)", Case Analysis (2019). Memorandum of Claim dated 1st September 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/847/eng@2019-09-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.