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ELRCPartially Allowed· [2019] KEELRC 1134 (KLR)

Peter Onyiego Nyambati v Kenya Kazi Services Limited [2019] KEELRC 1134 (KLR)

Employment and Labour Relations Court
19 July 2019
901 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a security guard from 2002, was dismissed by letter dated 19 June 2013. The Respondent closed its case without leading any evidence, while the Claimant testified that there was no notice, show cause letter or disciplinary hearing. The Respondent's position in submissions was that the Claimant, who had been in lawful custody from 5 May 2013 to 10 June 2013, was dismissed for declining to attend a three-day refresher course, amounting to disobedience of a lawful command under sections 44(4)(b) & (c) of the Employment Act, 2007. The Court held that while written notice is not required for summary dismissal, a hearing under section 41(2) is mandatory, and the Respondent adduced no evidence of who, when, where and how the Claimant was heard. Following Lawrence Onyango Oduori v Kenya Commercial Bank Ltd, the Court found the summary dismissal unfair and awarded compensation equivalent to 12 months' gross salary (Kshs 242,208/-) given about 11 years of service, plus one month's salary in lieu of notice (Kshs 9,529/-). On the contractual and statutory heads, the pro rata leave claim of Kshs 9,315/- was allowed because the Respondent produced no leave records under sections 10(3) & (7). The overtime claim of Kshs 13,456/- failed for want of particulars and because the pay slip showed overtime was paid. Service gratuity was refused as the Claimant contributed to the NSSF under sections 35(5) & (6). The Court declared the dismissal unfair, awarded a total of Kshs 261,052/-, ordered the Respondent to issue a certificate of service within 15 days, and awarded costs to the Claimant. Judgment was delivered in Nairobi on 19 July 2019 by Radido Stephen, Judge.

Key legal issues

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01

Whether the summary dismissal of the Claimant was unfair

Holding

The summary dismissal was unfair because the Respondent led no evidence that the Claimant was heard before dismissal for disobeying a lawful command

Reasoning

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.

p. 1
02

Compensation and pay in lieu of notice

Holding

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/-)

Reasoning

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.

p. 2
03

Pro rata leave, overtime, service gratuity and certificate of service

Holding

Pro rata leave allowed; overtime and service gratuity claims dismissed; certificate of service to be issued within 15 days

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Declaration that the summary dismissal of the Claimant was unfair
  2. 2.Award of compensation equivalent to 12 months' gross salary of Kshs 242,208/-
  3. 3.Award of one month's salary in lieu of notice of Kshs 9,529/-
  4. 4.Award of pro rata leave of Kshs 9,315/-
  5. 5.Total award of Kshs 261,052/- to the Claimant
  6. 6.Respondent to issue a certificate of service to the Claimant within 15 days
  7. 7.Claimant to have costs of the cause

Authorities

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Legislation

  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007sections 44(4)(b) & (c)
  • Employment Act, 2007section 45
  • Employment Act, 2007sections 10(3) & (7)
  • Employment Act, 2007sections 35(5) & (6)

Cases cited (1)

  • Lawrence Onyango Oduori v Kenya Commercial Bank Ltd
    (2014) eKLR
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

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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, "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.