Humphrey Munyithya Mutemi v Soluxe International Group of Hotels and Lodges Limited [2020] KEELRC 1090 (KLR)

As the Respondent did not enter appearance or file a defence, the court applied the principle from Monica Kanini Mutua that a claimant in an undefended claim must prove all facts including the employment relationship. Documents produced - termination letter, duty sign sheets, overtime sheets and certificate of service - sufficed to establish the relationship, consistent with the approach in Elijah Kipkoros Tonui and Herman Ilangarwa Shidakwa.

There was no evidence of minutes of a disciplinary hearing or any process according the Claimant a hearing before termination. The court held that hearing and notification are mandatory under Section 41 of the Employment Act, 2007, and applying Walter Ogal Anuro, a valid termination requires both substantive justification and procedural fairness. With neither controverted, the termination failed the fairness test.

Having found the termination unfair, the court considered the length of service (approximately two years), the fact that the Claimant did not contribute to the termination by his conduct, and that the reasons in the termination letter were grounds for redundancy. On these factors it fixed compensation at six months' salary, less than the twelve months claimed.

In the absence of contrary evidence from the Respondent, and applying the rule that the employer bears the duty to keep and produce records of hours of work, the court accepted the sign-in sheets showing an average of one hour's overtime per day. As a continuing injury, it limited the award to 12 months at 6 days a week; since the claim was lower than the amount due, the claimed sum was awarded.

The Claimant admitted receiving Kshs.40,000, being one month's salary in lieu of notice, at separation. With no evidence supporting an entitlement to three months' notice, he was limited to one month's notice under Section 36, which had been paid. The prayer therefore stood dismissed.