Janvan Gathara Ngunda v Ready Consultancy Company Ltd [2019] KEELRC 1431 (KLR)
The bottom line
#A Mombasa court ruled a courier company's dismissal of its manager unfair because it followed fair procedure but had no proof he absconded, awarding Kshs. 386,537.
What this practically means
#Executive summary
#Key legal issues
#Designation of the Claimant
Claimant was employed as General Manager
The written contract dated 1st June 2013 designating the Claimant General Manager satisfied Section 9(3) of the Employment Act. The Respondent's Human Resource Manager's evidence downgrading him to Supervisor had no foundation and was rejected; corroborated by the Off-days/Holidays Form and Return-to-Work Formula documents.
Procedural fairness of dismissal
Procedure met the minimum standards of fairness under Sections 41 and 45
The Claimant received two letters to show cause, responded to one, was invited to a disciplinary hearing, asked for and was granted time to respond, and was heard in the presence of a Director. The Court found no defect in the procedure adopted by the Respondent.
Substantive justification for termination
Termination unfair for want of valid grounds – no evidence of absconding
The Respondent gave no dates of absence, called no Client, Supervisor or Employee to substantiate absenteeism allegations, and produced no evidence of absence from work. Fellow Employees portrayed a dutiful Manager. The Respondent thus failed under Sections 43, 45 and 47 of the Employment Act.
Compensation quantum
6½ months' salary awarded under Section 49
The Court considered the Claimant's 3 years of service, his useful role quelling industrial strikes and calming grievances, and his expectation to serve until retirement. Though procedurally fairly heard, he was denied substantive justice, justifying the award.
Service pay eligibility
Service pay awarded for 3 complete years despite N.S.S.F registration
The Respondent failed to show the Claimant was an actively and fully paid-up N.S.S.F member. Following Elijah Kipkoros Tonui v Ngara Opticians, bare registration does not defeat service pay; the Respondent's own evidence confirmed unresolved N.S.S.F issues.
Legal principles established
#- Bare registration with N.S.S.F does not disqualify an employee from service pay; registration must be active and carry superior social security benefits compared to the service pay regime
- Procedural fairness alone does not save a termination lacking substantive justification
Court orders
#- 1.Declaration that termination was unfair for want of valid reason or reasons
- 2.Respondent to pay annual leave at Kshs. 48,461; service pay at Kshs. 51,923; salary arrears at Kshs. 61,153; 6½ months' salary compensation for unfair termination at Kshs. 195,000; and notice pay at Kshs. 30,000 – total Kshs. 386,537
- 3.Costs to the Claimant
- 4.Interest at 14% per annum from the date of Judgment till payment in full
- 5.Prayer (c) in the Statement of Claim expunged from the record
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 9, 35, 41, 43, 45, 47 and 49 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Janvan Gathara Ngunda v Ready Consultancy Company Ltd [2019] KEELRC 1431 (KLR)", Case Analysis (2019). Cause at Mombasa – Statement of Claim filed 29th November 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1431/eng@2019-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.