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ELRCPartially AllowedELRC Cause No. 1289 of 2015· [2019] KEELRC 1094 (KLR)

Julius Maina Mwangi v Afri Fashions Limited [2019] KEELRC 1094 (KLR)

Employment and Labour Relations Court of Kenya
9 July 2019
HWHellen S. Wasilwa
1,596 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer couldn't prove why it fired a worker, so it now owes him over Kshs. 218,000 plus costs.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 2005 at a monthly salary pleaded as Kshs. 16,200, sued for damages for unfair termination on 23rd December 2014 and unpaid terminal dues, claiming Kshs. 429,300 comprising compensation for unfair termination, one month's notice, leave pay and service pay. The Respondent admitted the employment but contended the Claimant absconded duty from 23rd December 2014, that his salary was Kshs. 18,404, and filed a Counterclaim for Kshs. 36,808 being two months' notice allegedly owed under a union memorandum. At trial each party called one witness. The Claimant testified he was terminated verbally without notice after demanding unpaid wages and was never accorded a hearing. The Respondent's General Manager admitted a union meeting at which it was agreed the Claimant would return to work, and conceded he had no warning letters to support allegations of rudeness. The court held that absconding did not arise because the Claimant had already been terminated before the union meeting, and that the Respondent had failed to explain the circumstances or reasons for the termination, contrary to Section 45(2) of the Employment Act, 2007. The court found the termination unfair and unjustified and awarded the Claimant one month's salary in lieu of notice (Kshs. 16,200), service pay for 9 years (Kshs. 72,900) and 8 months' salary as compensation (Kshs. 129,600), totaling Kshs. 218,700, with costs and interest. Leave pay was not awarded and the Counterclaim was not granted.

Key legal issues

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01

Whether the termination of the Claimant was unfair and unjustified under Section 45(2) of the Employment Act

Holding

The termination was unfair and unjustified as the Respondent failed to prove a valid reason and fair procedure

Reasoning

The Respondent alleged that the Claimant absconded duty, but the court found the Claimant had already been terminated before the union meeting of 17/3/2015 at which reinstatement was discussed. The Respondent did not explain the circumstances or reasons for the termination, failing the Section 45(2) test requiring proof of a valid and fair reason and fair procedure.

p. 3
02

Whether the Claimant's alleged resignation/absconding defeated his claim

Holding

No - the evidence showed he was terminated before any alleged absconding, and the Respondent admitted a union meeting agreeing to his return to work

Reasoning

Both parties admitted a meeting with the union on 17/3/2015 where reinstatement on condition of writing an apology letter and reapplying was agreed; the Claimant declined. Since the termination preceded the meeting, the defence of absconding or resignation could not stand.

p. 3

Legal principles established

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  • A termination is unfair where the employer fails to prove a valid reason, a fair reason and a fair procedure
  • Where the employer does not explain the circumstances and reasons for termination, the termination is unfair and unjustified

Court orders

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  1. 1.1 months' salary in lieu of notice of Kshs. 16,200/= to the Claimant
  2. 2.Service pay for 9 years of Kshs. 72,900/= to the Claimant
  3. 3.8 months' salary as compensation for unfair and unjustified termination of Kshs. 129,600/= to the Claimant
  4. 4.Total award of Kshs. 218,700/= to the Claimant
  5. 5.Respondent to pay costs of the suit plus interest at Court rates from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Sections 43, 45 and 47
  • Employment Act, 2007Section 35
  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 45(2)

Cases cited (6)

  • George Onyango Akuti Vs G4S Security Services Kenya Limited
    (2013) eKLR
  • Kennedy Obala Oaga Vs Kenya Ports Authority
    (2018) eKLR
  • Owaga Vs Transocean (U) Ltd
    (1990) KLR 197
  • Leah Shighadi Sinoya Vs Avtech Systems Limited
    (2017) eKLR
  • Coca Cola East and Central Africa Limited Vs Maria Kagai Liganga
    (2015) eKLR
  • Daniel Githinji Kihumba Vs Lengetia Limited
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Section 45(2) applied)

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, "Julius Maina Mwangi v Afri Fashions Limited [2019] KEELRC 1094 (KLR)", Case Analysis (2019). ELRC Cause No. 1289 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1094/eng@2019-07-09

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