Peter Onyiego Nyambati v Kenya Kazi Services Limited [2019] KEELRC 1134 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the Claimant was unfair
The summary dismissal was unfair because the Respondent led no evidence that the Claimant was heard before dismissal for disobeying a lawful command
Although the principal reason for dismissal was the Claimant's refusal to attend a refresher course, an employer relying on summary dismissal must still comply with the mandatory hearing under section 41(2). The Respondent, which closed its case without calling evidence, produced no minutes, notice or details of who heard the Claimant, when, where or how. Procedural fairness was therefore not demonstrated and the dismissal was unfair.
Compensation and pay in lieu of notice
Compensation assessed at 12 months' gross salary (Kshs 242,208/-) given about 11 years of service, plus one month's basic salary in lieu of notice (Kshs 9,529/-)
Having found the dismissal unfair, the Court considered the length of service, about 11 years, in assessing compensation at the maximum of 12 months' gross salary based on the April 2013 pay slip. One month's basic salary was allowed as notice pay because the dismissal was unfair and no lawful notice was given.
Pro rata leave, overtime, service gratuity and certificate of service
Pro rata leave allowed; overtime and service gratuity claims dismissed; certificate of service to be issued within 15 days
Leave is a statutory entitlement and the Respondent failed to produce leave records under section 10(3) & (7) to rebut the Claimant's testimony, so the claim was allowed. The overtime claim failed for lack of particulars and because the pay slip showed overtime was paid. Service gratuity failed as the Claimant was an NSSF contributor. A certificate of service is a statutory entitlement the Respondent must issue.
Legal principles established
#- In summary dismissal, written notice of termination under section 35(1)(c) is not required but a hearing under section 41(2) is mandatory, and the employer must be able to demonstrate how and by whom the employee was heard
- Where an employer fails to produce leave records under section 10(3) & (7) of the Employment Act, 2007, an employee's uncontroverted testimony on leave entitlement is accepted
- An employee contributing to the NSSF is not eligible for service pay under section 35(5) & (6) of the Employment Act, 2007
Court orders
#- 1.Declaration that the summary dismissal of the Claimant was unfair
- 2.Award of compensation equivalent to 12 months' gross salary of Kshs 242,208/-
- 3.Award of one month's salary in lieu of notice of Kshs 9,529/-
- 4.Award of pro rata leave of Kshs 9,315/-
- 5.Total award of Kshs 261,052/- to the Claimant
- 6.Respondent to issue a certificate of service to the Claimant within 15 days
- 7.Claimant to have costs of the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (original employment cause; specific constitutional provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Onyiego Nyambati v Kenya Kazi Services Limited [2019] KEELRC 1134 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1134/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.