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ELRCPartially AllowedCause No. 2023 of 2015· [2019] KEELRC 1544 (KLR)

Francis Ngigi Ngugi v Nakumatt Holdings Limited [2019] KEELRC 1544 (KLR)

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

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Nakumatt was ordered to pay a former shop assistant Kshs.173,800 after firing him without notice, reasons or a hearing.

What this practically means

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Executive summary

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The claimant, Francis Ngigi Ngugi, sued Nakumatt Holdings Limited claiming damages for wrongful and unfair termination of employment and unpaid terminal dues of Kshs.244,110, including compensation of up to twelve months' wages, costs and interest. He pleaded that he was employed as a Shop Assistant and that his services were terminated verbally without notice or a chance to show cause, contrary to Section 41 of the Employment Act, 2007. At the hearing on 1st April 2019 the respondent, though duly served with a hearing notice and an affidavit of service filed in court, failed to attend, and the matter proceeded ex parte with the claimant testifying as CW1. In his testimony the claimant stated he was employed on 6th October 2003 on permanent and pensionable terms at Kshs.7,900 monthly and that his services were terminated on 1st September 2009 without warning, notice or hearing, and that he believed the termination was linked to his illness. The court found the claimant's case uncontroverted in the absence of any evidence from the respondent, and held that the claimant had proved his case on a balance of probabilities, noting that the dismissal letter gave no reasons for the summary dismissal. The court awarded one month's salary in lieu of notice (Kshs.7,900), leave for three years (Kshs.23,700), six months' salary as compensation for unfair termination (Kshs.47,400) and unpaid salary from July 2008 to August 2009 (Kshs.94,800), totalling Kshs.173,800, with costs of the case and interest at court rates from the date of judgment. The award fell short of the sum claimed and of the maximum twelve months' compensation sought.

Key legal issues

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01

Whether termination was wrongful and unfair

Holding

The court found the termination unfair, noting no reasons were given in the dismissal letter and the claimant's case was uncontroverted

Reasoning

The claimant testified he received no notice, no warning and no hearing before termination. The respondent, though served, did not appear at the hearing or file any evidence. The dismissal letter gave no reasons for the summary dismissal. In the absence of rebuttal evidence, the court accepted the claimant's account and found the case proved on a balance of probabilities, engaging the protective requirements of fair procedure under the Employment Act.

p. 2
02

Quantum of relief for unfair termination and terminal dues

Holding

The court exercised discretion to award one month's notice pay, three years' leave pay, six months' compensation for unfair termination and unpaid salary, totalling Kshs.173,800, plus costs and interest

Reasoning

Although the claimant sought up to twelve months' wages as compensation, the court in its discretion awarded six months' salary as compensation for unfair termination, together with notice pay, leave accrued over three years and unpaid salary from July 2008 to August 2009. Costs and interest at court rates from the date of judgment were also granted.

p. 2

Legal principles established

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  • Where a respondent fails to attend the hearing despite due service, the claimant's case remains uncontroverted and will be proved on a balance of probabilities if supported by evidence
  • A summary dismissal without reasons and without notice or hearing offends the Employment Act and attracts compensation

Court orders

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  1. 1.Payment of 1 month's salary in lieu of notice of Kshs.7,900
  2. 2.Payment of leave for 3 years of Kshs.23,700
  3. 3.Payment of 6 months' salary as compensation for unfair termination of Kshs.47,400
  4. 4.Payment of unpaid salary from July 2008 to August 2009 of Kshs.94,800
  5. 5.Total award of Kshs.173,800
  6. 6.Respondent to pay costs of the case
  7. 7.Interest at Court rates with effect from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act, 2007 (not expressly cited 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, "Francis Ngigi Ngugi v Nakumatt Holdings Limited [2019] KEELRC 1544 (KLR)", Case Analysis (2019). Cause No. 2023 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1544/eng@2019-05-22

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