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ELRCPartially AllowedCause No 2389 of 2016· [2021] KEELRC 310 (KLR)

Orao Kennedy v Creative Consolidated Systems Limited [2021] KEELRC 310 (KLR)

Employment and Labour Relations Court
30 November 2021
SRStella Rutto
1,815 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, employed by the respondent as a cleaner from 27th February 2014, claimed that his services were unlawfully terminated on 21st July 2016. He sought compensatory damages for wrongful termination, one month's salary in lieu of notice, salary for days worked, and unpaid leave. The respondent neither entered appearance nor filed a response, and the claim proceeded to formal proof hearing on 14th October 2021, where the claimant testified and adopted his witness statement and documents. The court framed two issues: whether the termination was unfair and unlawful, and whether the claimant was entitled to the reliefs sought. Applying sections 43(1), 45(2) and 41(1) of the Employment Act, the court held that the employer bore the burden of proving valid reasons and fair procedure. The termination letter advanced no reasons at all, and there was no evidence that the claimant was notified of reasons or accorded an opportunity to be heard. The letter also required handover of company property by a date already past when the letter was allegedly served, showing the notice was merely on paper. Following the Court of Appeal decision in Kenfreight (E.A.) Limited v Benson K. Nguti, the court found the termination unfair and unlawful. The claimant was awarded four months' gross salary (Kshs 39,200) as compensatory damages, one month's salary in lieu of notice (Kshs 9,800), and salary for 21 days worked (Kshs 6,860), with interest and costs of the suit. The claim for leave and overtime was declined for want of evidence.

Key legal issues

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01

Whether the claimant's termination was unfair and unlawful

Holding

Termination was unfair and unlawful for want of reasons and fair procedure

Reasoning

The letter of termination advanced no reasons, so the employer failed to discharge its burden under sections 43(1) and 45(2) of the Employment Act. There was also no evidence the claimant was notified of reasons or given an opportunity to be heard as required by section 41(1). The respondent filed no defence and tendered no evidence to rebut the claim. Further, the letter requiring handover by 10th July 2016 while served on 21st July 2016 showed the notice was illusory and the termination abrupt.

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02

Whether the claimant is entitled to the reliefs sought

Holding

Compensatory damages of four months' gross salary, one month's salary in lieu of notice and 21 days' salary awarded; leave and overtime claim declined for want of evidence

Reasoning

Having found the termination unfair, the court exercised its discretion to award four months' gross salary as compensatory damages, informed by the respondent's complete failure to advance reasons or follow fair procedure. Notice pay and salary for 21 days worked were awarded as uncontroverted. The claim for leave and overtime failed because the claimant produced no leave records or other evidence to justify the entitlement.

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Legal principles established

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  • An employer bears the burden of proving reasons for termination and compliance with fair procedure; failure renders termination unfair
  • Issuing notice alone is insufficient; the employer must explain reasons and give the employee a hearing

Court orders

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  1. 1.A declaration that the claimant's termination by the respondent was unfair and unlawful
  2. 2.Compensatory damages in the sum of Kshs 39,200/= equivalent to 4 months gross salary
  3. 3.One month's salary in lieu of notice being Kshs 9,800/=
  4. 4.Salary for 21 days worked in July, 2016 being Kshs 6,860/=
  5. 5.The claimant shall have the costs of the suit
  6. 6.Interest on the awards at court rates from the date of judgment till payment in full

Authorities

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Legislation

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

Cases cited (1)

  • Kenfreight (E.A.) Limited v Benson K. Nguti
    Civil Appeal No. 31 of 2015
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act over a claim of unfair termination

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, "Orao Kennedy v Creative Consolidated Systems Limited [2021] KEELRC 310 (KLR)", Case Analysis (2021). Cause No 2389 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/310/eng@2021-11-30

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