Enoch Thiong’o Kibathi v Directline Assurance Company Limited [2021] KEELRC 275 (KLR)
The bottom line
#A Kenyan court ruled an employee's forced 'resignation' was actually an unfair termination, awarding damages because the disciplinary process was rushed and unfair.
What this practically means
#Executive summary
#Key legal issues
#Whether Section 45(3) of the Employment Act (13-month service threshold) bars the claim
The Court followed the High Court decision in Samuel G. Momanyi v Attorney General declaring Section 45(3) unconstitutional and held the Claimant entitled to complain of unfair termination despite serving only 8 months
The Court adopted Lenaola J's finding that the 13-month threshold in Section 45(3) is discriminatory and inconsistent with Articles 28, 41(1), 47, 48 and 50(1) of the Constitution. The Court of Appeal in Samuel G. Momanyi v SDV Transami endorsed that holding for claims filed after 18th May 2012, and this claim was filed in 2016.
Whether the Claimant resigned or was terminated
The Court found the Claimant was terminated; the alleged resignation was a camouflage for the termination
The Respondent's pleadings admitted summary dismissal and a disciplinary hearing, and its first list of documents included the termination letter, later omitted. The Claimant's evidence that he was ordered to return the termination letter and write a backdated resignation was uncontroverted. Applying the rule that parties are bound by pleadings, the Court preferred the Claimant's version.
Whether the termination was procedurally fair under Section 41 of the Employment Act
The disciplinary process was a sham; the termination was procedurally unfair
The show cause letter gave the Claimant only until close of business the same day to respond; he was not informed of his right to a colleague or union representative; his request to call witnesses was declined; and the Respondent failed to avail the disciplinary proceedings record or evidence that it considered his representations. The Respondent may have had a valid reason but used a flawed procedure which vitiated the termination.
Quantum of compensation for unfair termination under Section 49 of the Employment Act
Equivalent of two months' salary (Kshs.60,000) awarded as fair compensation
The Court considered Section 49(4) factors: the Claimant served only 8 months and wished to continue; he had just completed probation and training; there was no evidence of a previous warning; and the Claimant contributed to his termination. These factors justified a modest award of two months' salary rather than the 12 months claimed.
Legal principles established
#- An employer who takes an employee through a disciplinary process mechanically so as to appear to have complied with the law has not complied with Section 41 of the Employment Act
- Parties are bound by their pleadings; evidence at variance with pleadings must be disregarded
Court orders
#- 1.Judgment entered for the Claimant in the sum of Kshs.60,000
- 2.Claimant awarded costs of the suit
- 3.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Omuyonga v Fast Security Services Limited (Employment and Labour Relations Appeal E137 of 2023) [2025] KEELRC 1513 (KLR)[2025] KEELRC 1513 (KLR)23 May 2025
- Mutemi v KK Security; Attorney General (Interested Party) (Petition E088 of 2022) [2023] KEELRC 949 (KLR)[2023] KEELRC 949 (KLR)20 Apr 2023followed
- Joseph Mutune Makau v Directline Assurance Company Limited [2022] KEELRC 173 (KLR)[2022] KEELRC 173 (KLR)28 Apr 2022applied
Cite this brief
#Cite this brief
Caselaw, "Enoch Thiong’o Kibathi v Directline Assurance Company Limited [2021] KEELRC 275 (KLR)", Case Analysis (2021). Cause No 461 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/275/eng@2021-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.