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ELRCPartially AllowedMemorandum of Claim dated 26th May 2016· [2021] KEELRC 195 (KLR)

Kitonga Kivundu v Ben & Jans Care Services Limited [2021] KEELRC 195 (KLR)

Employment and Labour Relations Court
14 December 2021
JGJACOB GAKERI
1,820 words in judgment
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The bottom line

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A Kenyan court ruled an employee's dismissal unfair because he was never given a hearing, even though the employer may have had valid reasons.

What this practically means

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Executive summary

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The Claimant, employed as support staff in the cleaning department from 20th August 2005 at Kshs.9,700 per month, was dismissed by letter dated 3rd November 2015 after he and colleagues protested a change in shift working hours effective 1st November 2015. The Respondent, though served, did not enter appearance or respond, and the matter proceeded to formal proof hearing on 18th October 2021. The Claimant sought declarations of unlawful and unfair summary dismissal, terminal benefits and compensatory damages totalling Kshs.302,600, costs and interest. The court framed two issues: whether the termination was fair, and whether the Claimant was entitled to the reliefs sought. Applying Sections 43, 45 and 41 of the Employment Act, the court held that although the Respondent alleged gross misconduct (refusal to obey lawful commands, abusive language, wilful neglect of duty) and the Claimant did not contradict those grounds, there was no evidence he was accorded a hearing; he was condemned unheard. The dismissal on 3rd November 2015 was declared unfair and unjustified under Section 45(2). On reliefs, the court awarded one month's notice pay (Kshs.9,700) under Section 35(1), underpayment of Kshs.10,954 as a statutory minimum wage entitlement, and compensation of five months' salary (Kshs.58,500) under Section 49(1)(c) read with Section 49(4), considering his roughly 10 years of service and clean disciplinary record but his failure to contradict the grounds of dismissal. The overtime claim (Kshs.89,467.74) and public holiday claim (Kshs.78,246) were declined for want of proof. Judgment was entered for Kshs.69,154 with costs and interest at court rates from the date of judgment, and a certificate of service was ordered to issue. Judgment was delivered virtually pursuant to COVID-19 directions.

Key legal issues

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01

Whether the Claimant's termination was fair

Holding

The dismissal was procedurally unfair and unjustified under Section 45(2) of the Employment Act because the Claimant was not given a hearing despite the Respondent possibly having valid grounds of gross misconduct

Reasoning

Section 45 requires the employer to prove both valid reason and fair procedure. The termination letter alleged gross misconduct, but there was no evidence the Claimant was subjected to a disciplinary process or accorded an opportunity to be heard as required by Section 41. He was therefore condemned unheard, rendering the dismissal unfair regardless of the merits of the misconduct allegations.

p. 3
02

Whether the Claimant is entitled to the reliefs sought

Holding

Notice pay, underpayment and 5 months' salary as compensation for unfair dismissal awarded; overtime and public holiday claims declined for want of proof

Reasoning

Notice pay is mandated by Section 35(1). The minimum wage underpayment is a prescription of law and was awarded. Compensation was discretionary under Section 49(1)(c), guided by Section 49(4): about 10 years' service, no prior warnings, but the Claimant did not contradict the grounds of dismissal. Overtime and public holiday claims failed for lack of evidential proof.

p. 3

Legal principles established

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  • A termination is unfair where the employer fails to prove a valid and fair reason and fair procedure under Section 45(2) of the Employment Act
  • An employee condemned unheard without a disciplinary process is unfairly terminated even if the employer may have had a valid reason
  • Reasons for termination are the matters the employer genuinely believed to exist at the time of termination
  • Where no witness is called for the defence, uncontroverted evidence stands, but claims must still be proved by evidence

Court orders

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  1. 1.Declaration that the Claimant's dismissal on 3rd November 2015 was unfair and unjustified under Section 45(2) of the Employment Act
  2. 2.Payment of one month's salary in lieu of notice of Kshs.9,700
  3. 3.Award of underpayment of Kshs.10,954 from May 2015 to November 2015
  4. 4.Damages for unfair dismissal equivalent to 5 months' salary of Kshs.58,500
  5. 5.Certificate of service to issue
  6. 6.Judgment entered for the claim for Kshs.69,154 with costs
  7. 7.Interest at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 45(2)
  • Employment ActSection 43(2)
  • Employment ActSection 41
  • Employment ActSection 44
  • Employment ActSection 35(1)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 49(4)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Justine Onwoyo Among'a v Mount Kenya University
    [2016] eKLR
  • Peter Wangai v Egerton University
    [2019] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Stanley Mwangi Gachungu & another v Barclays Bank of Kenya Limited
    [2019] eKLR
  • CMC Aviation Ltd v Mohammed Noor
    [2015] eKLR
  • Naima Khamis v Oxford University Press (EA)
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the 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, "Kitonga Kivundu v Ben & Jans Care Services Limited [2021] KEELRC 195 (KLR)", Case Analysis (2021). Memorandum of Claim dated 26th May 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/195/eng@2021-12-14

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