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ELRCPartially AllowedCause No 2304 of 2014· [2020] KEELRC 1158 (KLR)

John Kahiga Menu v Nuclear Investment [2020] KEELRC 1158 (KLR)

Employment and Labour Relations Court
13 March 2020
ANAbuodha Jorum NelsonBOByram Ongaya
1,199 words in judgment
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The bottom line

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Kenya's Employment Court ruled two workers were unfairly fired because their employer never gave them a hearing before dismissal.

What this practically means

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Executive summary

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Two claimants sued Nuclear Investment before the Employment and Labour Relations Court in Nairobi, Cause No 2304 of 2014, alleging unfair and wrongful termination of employment. Benjamine Ndungu Wanyoike, employed as a Petrol Station Manager from October 2003, was abducted on his way to work in January 2013, drugged, and robbed of his office keys. On regaining consciousness he reported to work but was accused by the directors of stealing the day's proceeds, summarily dismissed orally on 6th January 2013, arrested and charged with stealing before the SPM-Nyahururu; the charges were withdrawn on 14th March 2014 for lack of evidence. The second claimant, John Kahiga Menu (referred to in the body as John Kahiga Maru), a matatu booking clerk employed from October 2003, was terminated on 13th June 2013 without hearing or reason after taking sick leave following a fractured hand. The respondent filed a defence of bare denials, alleging desertion, and did not attend the hearing to cross-examine or tender rebuttal evidence. The court found the claims uncontroverted, held that the law requires an employee to be informed of allegations and given a hearing before termination, found no evidence of desertion, and returned a verdict of unfair termination. It awarded Menu Kshs 67,467 and Wanyoike Kshs 123,000 (notice pay, unpaid salary and seven months' compensation), subject to taxes and less sums already paid, with costs. The claim for 10 months' annual leave was rejected as unsupported and stale. Judgment dated and delivered at Nairobi on 13th March 2020 by Abuodha Jorum Nelson J, delivered by Byram Ongaya J.

Key legal issues

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01

Procedural fairness in termination of employment

Holding

Termination without informing the employee of allegations and according a hearing is unfair.

Reasoning

The court held that the law requires an employee to be informed of allegations and given a chance to defend himself and call witnesses before termination. Nothing on record showed the Claimants were taken through such a process. The respondent led no evidence of any hearing, and its defence was a bare denial, so the claim of unfair termination stood uncontroverted and was upheld.

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02

Alleged desertion/absconding by the employee

Holding

The defence of desertion failed for want of evidence.

Reasoning

The respondent asserted the Claimants deserted employment, but adduced no evidence of a notice to resume work or any attempt to establish their whereabouts. In the absence of such proof, the court could not find desertion and instead returned a verdict of unfair termination against the respondent.

p. 2
03

Claim for untaken annual leave

Holding

Rejected; long-pending leave claims raised only at termination are disfavoured.

Reasoning

The court found no record that the 10 months' leave claimed had been requested and refused. It cautioned that courts should be wary of claims for long periods of untaken leave raised for the first time when employment ends, which were never raised during the employment itself.

p. 2

Legal principles established

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  • Before termination of employment an employee must be informed of the allegations against him and given an opportunity to defend himself, including calling witnesses where required.
  • A bare denial without evidence leaves allegations of unfair termination uncontroverted.
  • A claim of desertion must be supported by evidence of a notice to resume work or attempts to trace the employee.

Court orders

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  1. 1.Verdict of unfair termination entered in favour of both Claimants
  2. 2.Award to John Kahiga Menu: one month's salary in lieu of notice Kshs 8,000; 13 days' pay for the month of June Kshs 3,467; seven months' pay as compensation for unfair termination Kshs 56,000; total Kshs 67,467, subject to taxes and less sums already paid
  3. 3.Award to Benjamine Wanyoike: one month's salary in lieu of notice Kshs 1,500; unpaid salary for 6 days worked in January 2013 Kshs 3,000; seven months' salary as compensation for unfair termination Kshs 105,000; total Kshs 123,000, subject to taxes and less sums already paid as terminal dues
  4. 4.Costs of the suit to the Claimants
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over claims of unfair termination of employment (Employment Act, 2007 as implied by the court's reasoning; no express provision cited)

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, "John Kahiga Menu v Nuclear Investment [2020] KEELRC 1158 (KLR)", Case Analysis (2020). Cause No 2304 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1158/eng@2020-03-13

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