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ELRCAllowedCause No 760 of 2016· [2020] KEELRC 346 (KLR)

Paul Mbuya Jakoyo v Horizon Contact Centres Ltd [2020] KEELRC 346 (KLR)

Employment and Labour Relations Court
2 October 2020
RSRadido Stephen
489 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that fired a worker without notice or reasons, and never defended the case, was ordered to pay compensation and costs.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Customer Care Representative on 1 January 2015 at a salary of Kshs 19,000/-, sued on 5 May 2016 alleging that his employment was verbally terminated without notice, justifiable reasons, or payment in lieu. He asserted that he had been granted leave in October 2015 to attend to his sick father, obtained permission to extend the leave after his father's death, and on resuming duty was informed his employment had been terminated with no reasons given. The Respondent filed a Memorandum of Appearance on 21 July 2017 through Gitonga Kinyanjui & Co. Advocates but never filed a Response. Following directions issued on 3 July 2020, the Claimant filed his affidavit evidence and submissions on 20 July 2020, and the Cause proceeded undefended. Radido Stephen J found the Claimant's case uncontroverted and held that the termination breached sections 35(1)(c) and 41 of the Employment Act, 2007, and was procedurally unfair. Relying on sections 43 and 45 of the Act, the Court held it was incumbent on the employer to prove the reasons for termination and, the Respondent having snubbed that opportunity, concluded the termination was not for valid or fair reasons. The Court declared the termination unfair and awarded Kshs 19,000/- as salary in lieu of notice and Kshs 38,000/- as compensation (two months' salary, reflecting only about 10 months of service), totaling Kshs 57,000/- with interest at Court rates from the date of judgment. The Respondent was ordered to issue a certificate of service within 21 days, and the Claimant was awarded costs. Judgment delivered virtually from Nairobi on 2 October 2020.

Key legal issues

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01

Whether the termination was without notice and procedurally unfair

Holding

Termination without written notice and without reasons breached sections 35(1)(c) and 41 of the Employment Act and was procedurally unfair.

Reasoning

The Claimant testified that when he resumed duty after an agreed extension of leave, he was informed his employment had been terminated with no reasons given. The Respondent filed a Memorandum of Appearance but no Response, leaving the claim uncontroverted. The Court therefore had no hesitation in finding the Respondent's decision in breach of sections 35(1)(c) and 41 of the Employment Act, 2007, and held the decision procedurally unfair.

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02

Whether the termination was for valid and fair reasons

Holding

The termination was not for valid or fair reasons because the Respondent failed to prove the reasons for termination.

Reasoning

Sections 43 and 45 of the Employment Act place the burden on the employer to prove the reasons for terminating an employee's contract. The Respondent, having declined to file a Response, snubbed the opportunity to discharge that burden. The Court therefore concluded that the decision was not for valid or fair reasons, entitling the Claimant to compensation for unfair termination.

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03

Entitlement to remedies for unfair termination

Holding

Claimant awarded one month's salary in lieu of notice and two months' salary as compensation given his short service of about 10 months, plus a certificate of service.

Reasoning

For failure to issue a written notice of termination, the Court awarded the equivalent of one month's salary in lieu of notice. Considering the unfair termination and that the Claimant had served only about 10 months, the Court exercised discretion to award the equivalent of two months' salary as compensation. A certificate of service was held to be a statutory entitlement to be issued within 21 days.

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Legal principles established

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  • Failure to respond to a claim leaves the claimant's evidence uncontroverted and the court may find breach of sections 35(1)(c) and 41 of the Employment Act and that termination was procedurally unfair.
  • Under sections 43 and 45 of the Employment Act, the employer bears the burden of proving reasons for termination; failure to discharge that burden permits a conclusion that the termination was not for valid or fair reasons.

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment was unfair
  2. 2.Award of salary in lieu of notice of Kshs 19,000/-
  3. 3.Award of compensation of Kshs 38,000/-
  4. 4.Total award of Kshs 57,000/- with interest at Court rates from the date of judgment
  5. 5.Respondent to issue certificate of service within 21 days
  6. 6.Claimant to have costs of the Cause

Authorities

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Legislation

  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007)

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, "Paul Mbuya Jakoyo v Horizon Contact Centres Ltd [2020] KEELRC 346 (KLR)", Case Analysis (2020). Cause No 760 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/346/eng@2020-10-02

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