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ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 296 (KLR)

Richard Mwendwa Muthama v Ladder Consulting Company Ltd & another [2020] KEELRC 296 (KLR)

Employment and Labour Relations Court
29 October 2020
OMONESMUS N MAKAU
1,232 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court ruled a driver's dismissal unfair because the employer gave no valid reason and no hearing, awarding him about Kshs 100,000.

What this practically means

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Executive summary

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The claimant sued the respondent in the Employment and Labour Relations Court at Nairobi alleging that he was employed as a Driver on 14.8.2013 at a gross monthly salary of Kshs 20,000 and that his employment was terminated on 14.2.2014 without a valid reason and without a hearing. He sought 12 months' salary as compensation for unlawful termination, unpaid salary for January 2014 plus 14 days of February 2014, accrued leave for seven months, costs and interest. The respondent never entered appearance, and the suit proceeded by formal proof, with the claimant disposing of the matter by written submissions on the material on record. The court framed two issues: whether the termination was unfair and unlawful, and whether the claimant was entitled to the reliefs sought. Applying sections 41, 45 and 47(5) of the Employment Act, the court found that the burden of proving unfair termination lay on the claimant, but that his uncontroverted evidence, including the contract of employment and his demand letter of 12.4.2014, proved on a balance of probability that he was dismissed without a valid reason and without a hearing. Reliance was placed on the precedents cited by the claimant, which require both a valid reason and a hearing for a fair termination. The court awarded compensation of three months' salary (Kshs 60,000) under section 49, considering the short service of seven months and the absence of misconduct, leave of 12.25 days (Kshs 9,423.07) and unpaid salary for 45 days (Kshs 30,500), totalling Kshs 99,923.07, subject to statutory deductions, plus costs and interest at court rates. Judgment was delivered online pursuant to the Covid-19 court operations directions.

Key legal issues

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01

Whether the termination was unfair and unlawful

Holding

Yes - the claimant was dismissed without a valid reason and without a hearing, contrary to sections 41 and 45 of the Employment Act

Reasoning

Under section 47(5) the burden of proving unfair termination rests on the employee. The claimant testified that he was verbally dismissed by the respondent's receptionist on 14.2.2014 and produced his contract of employment and a demand letter dated 12.4.2014. These facts were not contested by the respondent, which never entered appearance. The court therefore found the dismissal unfair within section 45 and relied on the precedents cited requiring both a valid reason and a hearing.

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02

Whether the claimant is entitled to compensatory damages, unpaid salary and leave

Holding

Yes - compensation of 3 months' salary, unpaid salary for 45 days and leave of 12.25 days awarded

Reasoning

Having found unfair termination, the court awarded compensatory damages under section 49 of the Employment Act, capped at 3 months' salary because the claimant served only 7 months and did not contribute to the termination. Leave was granted at 1.75 days per month prorated to 12.25 days based on the contract of employment, and unpaid salary for January 2014 plus 14 days of February 2014 was awarded.

p. 2

Legal principles established

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  • For a termination to be fair, the employer must have a valid reason and the employee must be heard on the cited reason
  • The burden of proving unfair termination rests on the employee under section 47(5) of the Employment Act, but uncontroverted facts prove the claim on a balance of probability

Court orders

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  1. 1.Judgment entered for the claimant against the respondents: compensation of Kshs 60,000.00
  2. 2.Unpaid salary for 45 days of Kshs 30,500.00
  3. 3.Leave of 12.25 days of Kshs 9,423.07
  4. 4.Total award of Kshs 99,923.07 subject to statutory deductions
  5. 5.Costs of the suit to the claimant
  6. 6.Interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Actsection 35(1)
  • Employment Actsection 41
  • Employment Actsection 42(1)
  • Employment Actsection 44(3) and (4)
  • Employment Actsection 45(1) and (2)
  • Employment Actsection 47(5)
  • Employment Actsection 49
  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • Alphonce Mghanga Mwachanya v Operation 680 Limited
    [2013] eKLR
  • Kenfreight (EA) Limited v Benson K. Nguti
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

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, "Richard Mwendwa Muthama v Ladder Consulting Company Ltd & another [2020] KEELRC 296 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/296/eng@2020-10-29

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