Anita Nzisa Kivulu v Cancer Care Kenya Limited [2020] KEELRC 257 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent complied with Section 41 of the Employment Act (notification and hearing before termination)
The Respondent did not comply with Section 41; there was no proper notice of the disciplinary hearing highlighting the allegations, so the Claimant could not mount a defence
The court set out Section 41's requirements: explanation of reasons in a language the employee understands and the right to have another employee or union representative present, plus hearing representations. The Claimant denied any disciplinary hearing took place on 23rd September 2019 and disputed the minutes. The Respondent produced no evidence of proper service of a notice of disciplinary hearing, and the meeting was, at most, a welcome-back discussion. Compliance failed.
Whether the termination was unfair under Section 45 of the Employment Act
The termination was unfair; the Respondent did not act in accordance with justice and equity, particularly given the Claimant had just returned from maternity leave
Applying Section 45(4)(b), the court found the employer did not act with justice and equity. Both elements of fairness (valid reason and fair procedure) were unmet: no valid reasons were demonstrated and no fair procedure was followed. The circumstances, including termination immediately upon return from maternity leave, reinforced the finding of unfairness.
What remedies the Claimant is entitled to
Six months' gross pay as compensation (Kshs.1,140,000), leave days not taken (Kshs.67,692.40), a Certificate of Service, and costs; gratuity refused
Having found unfair termination, the court assessed compensation at six months' gross pay considering the short duration of service and the fact the Claimant had just reported from maternity leave. A Certificate of Service was mandatory under Section 51. Gratuity failed as not provided for in the contract. Leave days succeeded because the Respondent's own minutes alluded to leave not taken and the Respondent did not specifically deny the prayer.
Legal principles established
#- For a termination to be fair, an employer must comply with Sections 41 and 43 of the Employment Act, and failure to comply renders the termination unfair under Section 45
- Termination is unfair where the employer fails to serve notice of a disciplinary hearing clearly highlighting the accusations to enable the employee mount a defence
- A termination shall be unfair where the employer did not act in accordance with justice and equity (Section 45(4)(b))
Court orders
#- 1.Declaration that the Claimant's termination was unfair (found on analysis)
- 2.Compensation for unfair termination of six months' gross pay: Kshs.190,000 x 6 months = Kshs.1,140,000/-
- 3.Award of Kshs.67,692.40 on account of leave days earned but not taken
- 4.Total award of Kshs.1,207,692.40
- 5.Respondent to issue the Claimant with a Certificate of Service under Section 51 of the Employment Act, 2007
- 6.Claimant awarded costs of the suit with interest at court rates from the date of judgment until full settlement
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Employment Act, 2007 and Labour Institutions Act, 2007 (specific constitutional/statutory article not stated)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anita Nzisa Kivulu v Cancer Care Kenya Limited [2020] KEELRC 257 (KLR)", Case Analysis (2020). Not stated in judgment (Memorandum of Claim dated 9th October 2019, filed 11th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/257/eng@2020-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.