Michelle Erleen Muthoni Nyaga v Satguru Travel and Tours Services Limited [2020] KEELRC 163 (KLR)
The bottom line
#A Kenyan tours company fired an employee by text message without a hearing and was ordered to pay her over Kshs.492,000 plus commission and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was procedurally and substantively unfair
The termination was substantively and procedurally unfair as the claimant was neither heard nor given a reason, and the allegations went uncontroverted
Sections 41 and 43 of the Employment Act mandate a hearing and valid reasons before summary dismissal. The Respondent failed to enter appearance or file a response despite service, so the claim was heard undefended. The claimant's unchallenged evidence that she was dismissed by text message without hearing or reasons stood uncontroverted, satisfying both procedural and substantive fairness requirements.
Whether exemplary damages were payable
Exemplary damages refused because the conduct was not oppressive, arbitrary or profit-driven
Relying on Godfrey Julius Ndumba Mbogori & Another v Nairobi City County, the court restated Lord Devlin's categories in Rookes v Barnard. Although the termination was unfair, the claimant did not establish that the respondent's actions were arbitrary and oppressive, so only compensatory awards under section 49(1)(c) of the Employment Act were warranted.
Entitlement to compensation under section 49(1)(c) of the Employment Act
Six months' gross salary awarded as compensation, Kshs.400,500.00
Section 49(1)(c) permits compensation up to twelve months' gross salary for unjustified summary dismissal. Considering the claimant's three-year length of service and the summary dismissal without due process or reasons, six months' salary based on her gross salary of Kshs.66,750 per month was a proportionate award.
Claims for service pay, house allowance and other contractual dues
Service pay and house allowance refused; leave days, notice pay and NHIF refunds awarded
Service pay was barred by section 35(6) since the claimant was an NSSF member with no complaints of non-remittance. House allowance failed because salary was consolidated with an express clause that no other emoluments were payable. Leave days were awarded because the respondent, custodian of leave records under section 74(1)(f), produced none; NHIF refunds followed from the statement showing non-remittance.
Legal principles established
#- Where an employer seeks to summarily dismiss an employee, the employee must be accorded procedural and substantive fairness
- Uncontroverted allegations against an employer who does not appear or respond remain uncontroverted and are taken as proved
- Exemplary damages are exceptional and require oppressive, arbitrary or unconstitutional action or profit-making conduct
- An employer who is custodian of employment records such as leave records bears the consequence of failing to produce them
Court orders
#- 1.Award of 6 months' salary as compensation for unfair termination, Kshs.400,500.00 based on gross salary of Kshs.66,750 per month
- 2.One month's salary in lieu of notice of Kshs.66,750.00
- 3.Award of 10 accrued annual leave days, Kshs.25,673.08
- 4.Respondent directed to tabulate and pay the 1% commission within 60 days from the date of judgment
- 5.Respondent directed to refund unremitted NHIF dues of Kshs.5,120.00
- 6.Respondent directed to issue the Claimant with a Certificate of Service in line with section 51(2) of the Employment Act
- 7.Judgment entered in favour of the claimant in the total sum of Kshs.492,923.08 plus commission to be tabulated by the Respondent within 60 days
- 8.Respondent to bear the costs of the suit with interest at court rates from date of filing suit on all heads of award except compensation, where interest accrues from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12(3)(v); Employment Act sections 41, 43, 49(1)(c)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michelle Erleen Muthoni Nyaga v Satguru Travel and Tours Services Limited [2020] KEELRC 163 (KLR)", Case Analysis (2020). Cause No 1712 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/163/eng@2020-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.