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ELRCPartially AllowedCause No. 287 of 2014· [2019] KEELRC 1541 (KLR)

Hellen Muthoni Ngare v Fred K. Athuok, Ali R. Haji t/a Ibrahim, Issack & Company Advocates [2019] KEELRC 1541 (KLR)

Employment and Labour Relations Court
23 May 2019
HWHellen S. Wasilwa
3,571 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a long-serving secretary nearly Kshs. 1 million because her employer fired her without giving reasons or a hearing.

What this practically means

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Executive summary

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The Claimant, a secretary, sued the two partners of Ibrahim, Issack & Company Advocates for damages for unfair and unlawful termination on 22nd October 2013 after 19 years of service, together with terminal dues, severance pay and a 10% commission on conveyancing business allegedly promised by letter of November 2010. The Respondents denied employing her, asserting the firm only came into existence in August/September 2013 upon formation of their partnership, that the previous firm had ceased to exist in 1997, and that the commission was illegal as sharing profits with an unqualified person contrary to the Advocates Act; they alleged gross misconduct on her part. The court framed three issues: existence of an employment relationship, procedural and lawful termination, and entitlement to remedies. It found that the firm had merely changed name and partnership composition, that the 1st Respondent had signed the commission letter and the cheque paying the Claimant before termination, and therefore an employment relationship existed. The termination letter gave no reasons and there was no evidence of a hearing, contrary to Sections 43, 41 and 45(2) of the Employment Act; the termination was therefore unfair and unjustified. The court awarded one month's salary in lieu of notice, salary for 22 days worked in October 2013, one year's leave pay and eight months' salary as compensation, totalling Kshs. 952,261 less statutory deductions, with costs and interest. Severance pay was rejected for want of redundancy and the commission claim failed for want of proof. Judgment delivered by Hellen S. Wasilwa, J on 23rd May 2019.

Key legal issues

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01

Existence of an employment relationship between the Claimant and the Respondents

Holding

An employment relationship existed between the Claimant and the Respondents notwithstanding the change in the firm's name and partnership composition

Reasoning

The court traced the employment from the original firm of Mohamed Ibrahim & Associates through the name change to Ibrahim, Issack & Company Advocates. The 1st Respondent had signed the letter of 10.11.2010 offering the Claimant commission, and the Claimant was paid by cheque signed by the 1st Respondent shortly before termination. The firm's own documents evidenced the name and partnership changes. The contention that the Claimant was never their employee was found untrue.

p. 5
02

Procedural and substantive fairness of the termination

Holding

The termination was unfair and unjustified for want of valid reasons and due process, contrary to Sections 43, 41 and 45(2) of the Employment Act

Reasoning

The termination letter of 22.10.2013 gave no reasons for termination and there was no indication the Claimant was subjected to any disciplinary process or hearing. Sections 43 and 41 of the Employment Act require the employer to prove reasons for termination and to hear the employee. Absent either, the termination fell foul of Section 45(2) and was unfair.

p. 5
03

Entitlement to remedies

Holding

Claimant awarded notice pay, salary for days worked, one year's leave pay and 8 months' compensation; severance and commission refused

Reasoning

Having found unfair termination, the court exercised discretion under Section 49 of the Employment Act to award one month's notice, salary for 22 days worked in October 2013, leave pay for one year, and 8 months' salary as compensation. Severance pay was refused because there was no redundancy, and the commission claim failed for want of proof.

p. 6

Legal principles established

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  • An employer bears the burden of proving the reason(s) for termination; failure to do so renders the termination unfair under Section 45
  • An employee must be heard and given reasons before termination on grounds of misconduct, poor performance or incapacity

Court orders

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  1. 1.1 month salary in lieu of notice of Kshs. 88,916
  2. 2.Salary for 22 days earned in October 2013 of Kshs. 63,101
  3. 3.Leave pay for 1 year of Kshs. 88,916
  4. 4.8 months' salary as compensation for unlawful termination of Kshs. 711,328
  5. 5.Total award of Kshs. 952,261 less statutory deductions
  6. 6.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 35
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 47
  • Employment Act, 2007Section 49 (1)(c)
  • Employment Act, 2007Section 2
  • Employment Act, 2007Section 37
  • Employment Act, 2007Section 40 (1)(g)
  • Advocates Actnot specified (prohibition on sharing profits with unqualified persons)
  • Registration of Business Names Actnot specified
  • Constitution of Kenya, 2010Article 159
  • ILO Convention No. 158not specified

Cases cited (8)

  • Krystalline Salt Limited Vs Kwekwe Mwakele & 67 Others
    (2017) eKLR
  • William Muthee Muthami Vs Bank of Baroda
    (2014) eKLR
  • Hassan Zubeidi Vs Patrick Mwagangi Kibanya & Another
    (2014) eKLR
  • Michael Njenga Vs Rajmuk Investments Limited & 4 Others
    (2014) eKLR
  • Caliph O. Ogega Vs National Social Security Fund
    Cause No. 280 of 2013
  • D.K Marete Vs Teachers Service Commission
    (2013) eKLR
  • Godfrey Makindu Vs Trans Business Machines Limited
    (2013) eKLR
  • Elizabeth Washeke & 62 Others Vs Airtel Networks (K) Ltd & Another
    (2013) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007 claims before the ELRC)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hellen Muthoni Ngare v Fred K. Athuok, Ali R. Haji t/a Ibrahim, Issack & Company Advocates [2019] KEELRC 1541 (KLR)", Case Analysis (2019). Cause No. 287 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1541/eng@2019-05-23

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