Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 2496 (KLR)

Peter Barasa Wepukhulu v Nodor (K) EPZ Limited [2019] KEELRC 2496 (KLR)

Employment and Labour Relations Court
25 January 2019
445 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled an employer acted unfairly by firing a worker without written notice or a hearing, awarding five months' pay.

What this practically means

#

Executive summary

#
In this first-instance employment cause, Peter Barasa Wepukhulu (Claimant) sued Nodor (K) EPZ (Ltd) (Respondent) over the termination of his employment. The cause was heard on 29 October 2018 and 6 November 2018, with the Claimant testifying on his own behalf and the Respondent calling a former security supervisor. The court condensed the issues to whether the termination of employment was unfair and the attendant remedies. Applying section 35(1)(c) of the Employment Act, 2007, the court held that a monthly-paid employee requires written notice of termination, and section 41 requires an opportunity to make representations before termination. The Claimant's unrebuted testimony was that he was suspended and then issued with a termination letter on 22 May 2013 without written notice or a hearing. The court therefore found the termination tainted with procedural unfairness and, on that basis, declined to examine whether the Respondent met the substantive fairness test under sections 43 and 45. On remedies, considering about 5 years of service and a gross monthly wage of Kshs 12,592/-, the court awarded compensation equivalent to 5 months' gross wages (Kshs 62,960/-), noting the Claimant had already received one month's wage in lieu of notice. Service pay was refused because the Claimant contributed to the NSSF under section 35(5) & (6), and leave pay was refused as he had acknowledged payment of 9 outstanding leave days for 2013. The court awarded the Claimant costs of Kshs 30,000/-.

Key legal issues

#
01

Procedural fairness of termination

Holding

Termination was procedurally unfair for want of written notice and a hearing

Reasoning

Section 35(1)(c) requires written notice for monthly-paid employees and section 41 requires an opportunity to make representations. The Claimant testified he was suspended and then simply handed a termination letter on 22 May 2013 without notice or hearing, and this uncontroverted evidence was not rebutted by the Respondent. The court therefore found procedural unfairness made out.

p. 1
02

Whether substantive fairness under sections 43 and 45 needed examination

Holding

Not necessary, procedural unfairness having been established

Reasoning

Having concluded that the termination breached the procedural requirements of notice and hearing, the court declined to interrogate whether the employer had valid reasons for termination under sections 43 and 45, as the finding of procedural unfairness sufficed to ground the remedy of compensation.

p. 1
03

Quantum of compensation

Holding

Equivalent of 5 months gross wages awarded

Reasoning

The court considered the Claimant's approximately 5 years of service and applied the length of service as the key factor in fixing compensation at 5 months' gross wages, noting the gross monthly wage of Kshs 12,592/- and that one month's wage in lieu of notice had already been paid through the May 2013 pay slip.

p. 1

Legal principles established

#
  • A monthly-paid employee is entitled to written notice of termination under section 35(1)(c) of the Employment Act, 2007
  • Section 41 of the Employment Act requires an employee be afforded an opportunity to make representations before termination
  • An employee contributing to NSSF is not eligible for service pay under section 35(5) & (6)

Court orders

#
  1. 1.Declaration that termination of the Claimant's employment was unfair
  2. 2.Award of compensation equivalent to 5 months gross wages at Kshs 62,960/-
  3. 3.Costs of Kshs 30,000/- to the Claimant

Authorities

#

Legislation

  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 35(5) & (6)
  • Employment Act, 2007section 41
  • Employment Act, 2007sections 43 and 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Peter Barasa Wepukhulu v Nodor (K) EPZ Limited [2019] KEELRC 2496 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2496/eng@2019-01-25

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