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ELRCPartially AllowedCause No 596 of 2015· [2020] KEELRC 959 (KLR)

Stephen Onyiego Gichanga v Straight Security Services Limited (Cause 596 of 2015) (Employment and Labour) [2020] KEELRC 959 (KLR)

Employment and Labour Relations Court
29 May 2020
3,201 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court found no unfair termination but still awarded notice pay, prorated leave, and a certificate of service to the departing employee.

What this practically means

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Executive summary

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The claimant, employed as Personnel Manager from 21st April 2014, sued the respondent alleging unfair and unlawful termination of his employment on 9th February 2015 on allegations of a non-responsive application and failure to submit testimonials. He sought a declaration of unfair termination, terminal dues of Kshs.457,500 (notice pay, prorated leave, days worked, house allowance, 12 months' compensation), a certificate of service, general damages for defamation, interest and costs. The respondent admitted the engagement but asserted the claimant was on probationary terms, failed to avail original certificates, skipped the disciplinary hearing of 10th February 2015 (sending one Mr. Chencha), was paid his dues, and signed a discharge voucher. The court framed two issues: validity of the termination procedurally and substantively, and entitlement to reliefs. Applying Sections 45(2) and 47(5) of the Employment Act and the substantive-plus-procedural fairness test, the court found no unfair termination, noting the disciplinary hearing minutes showed a representative attended and the claimant was discharged through mutual consent. The court awarded Kshs.30,000 for one month's salary in lieu of notice (holding the discharge letter signified termination rather than dismissal) and Kshs.9,750 for 9.75 days prorated leave, but rejected claims for days worked (already paid), house allowance (consolidated salary), 12 months' compensation (no unfair termination), and general damages for defamation (not proved). Judgment was entered for the claimant totalling Kshs.39,750, with a certificate of service under Section 51, costs against the respondent, and interest from the date of judgment. Judgment delivered at Nairobi on 29th May 2020 by Maureen Onyango, J, via video conferencing under the COVID-19 directives.

Key legal issues

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01

Whether the termination of the claimant's employment was unfair (substantively and procedurally)

Holding

The court found no unfair termination; the evidence, including disciplinary hearing minutes showing a representative attended and a mutual consent discharge, showed termination by mutual consent

Reasoning

The court examined the disciplinary hearing form showing Mr. Chancha attended and made a plea for the claimant on 10th February 2015, the claimant's subsequent letter tabulating terminal dues, collection of salary for days worked, and minutes indicating discharge through mutual consent. On this evidence, the court found no procedural or substantive unfairness and no basis for compensation under Section 45 of the Employment Act.

p. 5
02

Whether the claimant was entitled to one month's salary in lieu of notice

Holding

Yes - awarded Kshs.30,000 as the discharge letter showed discharge/termination rather than dismissal

Reasoning

The discharge letter dated 13th February 2015 indicated the claimant had been discharged from the company, meaning he was not dismissed but terminated. He was therefore entitled to one month's notice or pay in lieu, and the court awarded Kshs.30,000 being one month's salary.

p. 5
03

Whether the claimant was entitled to prorated leave

Holding

Yes - awarded Kshs.9,750 for 9.75 days, the claimant having taken 6 days leave

Reasoning

The claimant claimed 9 months' prorated leave of Kshs.22,500. The respondent's computation of 9.75 days, accounting for the 6 days leave the claimant admitted taking in cross examination, was accepted by the court, which awarded Kshs.9,750 under this head.

p. 5
04

Whether the claimant was entitled to a certificate of service

Holding

Yes - by dint of Section 51 of the Employment Act, 2007

Reasoning

The claimant sought a certificate of service as required by Section 51 of the Employment Act. Despite the respondent's assertion that the claimant was dishonest, the court held that the statutory entitlement applies and ordered issuance of the certificate.

p. 5

Legal principles established

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  • For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness
  • Under Section 45(2) of the Employment Act, termination is unfair where the employer fails to prove a valid reason and fair procedure
  • An employee discharged by mutual consent rather than dismissed is entitled to notice or pay in lieu thereof

Court orders

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  1. 1.One month's salary in lieu of notice - Kshs.30,000
  2. 2.9.75 days prorata leave - Kshs.9,750
  3. 3.Certificate of service to be issued to the claimant
  4. 4.The respondent shall pay claimant's costs for the suit
  5. 5.Interest shall accrue from date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007Sections 41, 41(1), 41(2), 43, 43(2), 45, 45(2), 47(5), 51
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21 of the Laws of Kenya)Section 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (4)

  • Janet Melly Otieno v Kenya Ports Authority
    (2018) eKLR
  • Banking, Insurance & Finance Union (Kenya) v Barclays Bank of Kenya
    (2014) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Francis Mbugua Boro v Smartchip Dynamics Ltd
    (2017) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (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, "Stephen Onyiego Gichanga v Straight Security Services Limited (Cause 596 of 2015)  (Employment and Labour) [2020] KEELRC 959 (KLR)", Case Analysis (2020). Cause No 596 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/959/eng@2020-05-29

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