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ELRCAllowedNot stated in the judgment· [2019] KEELRC 1553 (KLR)

Antony Musyoka Musembi v Nairobi Ironmongers Limited [2019] KEELRC 1553 (KLR)

Employment and Labour Relations Court
24 May 2019
MOMaureen Onyango
1,168 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who fired a worker without evidence or a hearing was ordered to pay over Kshs. 184,000 in compensation and costs.

What this practically means

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Executive summary

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The Claimant, employed as a grader on 25 January 2007 at a monthly salary of Kshs. 12,600, sued for damages for unlawful termination and terminal dues. He alleged that after a co-worker was arrested for theft of a hydrant brush in August 2014, the Respondent's Director chased him away on 19 August 2014 without a reason, without notice pay, leave pay, salary for days worked and severance. The Respondent maintained that the Claimant was summarily dismissed under section 44(4)(g) for theft-related misconduct and absconding duty, and that all dues were paid and discharged at the Labour Office. The Court framed two issues: whether the termination was unfair and unlawful, and entitlement to remedies. Applying section 43 of the Employment Act, the Court found the Respondent failed to prove any reason for termination: no evidence of the alleged 5-day desertion, no evidence of a disciplinary process, and no termination letter were produced. Relying on Mary Chemweno Kiptui v Kenya Pipeline Company Limited, the Court held that failure to follow the mandatory procedure in section 41 renders a dismissal unfair. On remedies, the Court awarded pay in lieu of notice, unpaid salary for 19 days of August 2014, pay in lieu of accrued leave for 7 years, and compensation equivalent to 8 months' salary for the unfair dismissal. Judgment was entered for the Claimant in the total sum of Kshs. 184,348, with costs to the Claimant and interest on the decretal sum at court rates from the date of judgment.

Key legal issues

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01

Whether there was a valid reason for termination

Holding

There was no valid reason proved; the termination was unfair.

Reasoning

The Claimant testified he was chased away by the Director without any reason. The Respondent alleged the Claimant deserted duty for 5 days and was dismissed for misconduct, but produced no evidence of the absence, no evidence of any disciplinary process, and no termination letter. The Court therefore inclined to the finding that the Claimant was not given a reason for termination, engaging section 43's deeming provision.

p. 2
02

Whether the Claimant is entitled to the remedies sought

Holding

Yes - notice pay, unpaid August 2014 salary, leave pay and compensation of 8 months' salary were awarded.

Reasoning

Having found the summary dismissal unfair, the Court awarded one month's salary in lieu of notice, salary for the 19 days worked in August 2014 which the Respondent did not prove was paid, leave pay for 7 years uncontradicted, and compensation equivalent to 8 months' salary having regard to length of service and the manner of dismissal.

p. 2

Legal principles established

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  • An employer bears the burden of proving the reason for termination, failing which the termination is deemed unfair under section 45 of the Employment Act.
  • Compliance with section 41 of the Employment Act (notice, charges and hearing) is mandatory; a dismissal without a hearing is unfair.

Court orders

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  1. 1.Declaration that the summary dismissal of the Claimant was unfair
  2. 2.Payment in lieu of notice of Kshs. 12,600
  3. 3.Unpaid salary for August 2014 of Kshs. 9,208
  4. 4.Pay in lieu of annual leave of Kshs. 61,740
  5. 5.Compensation equivalent to 8 months' salary of Kshs. 100,800
  6. 6.Total award of Kshs. 184,348
  7. 7.Respondent to pay Claimant's costs
  8. 8.Interest on the decretal sum at court rates from the date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over claims arising out of termination of employment contracts (Employment Act)

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, "Antony Musyoka Musembi v Nairobi Ironmongers Limited [2019] KEELRC 1553 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1553/eng@2019-05-24

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