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ELRCPartially AllowedNot stated in judgment (Memorandum of Claim dated 9th September 2016)· [2021] KEELRC 378 (KLR)

Anthony Kangethe Kanja v Oilfield Movers Limited [2021] KEELRC 378 (KLR)

Employment and Labour Relations Court
24 November 2021
NMNzioki wa Makau
2,104 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employer cannot end a worker's contract over injury or incapacity without first notifying and hearing the employee — the Employment and Labour Relations Court awarded compensation for skipping that step.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Truck Driver from 13th October 2014 on a one-year contract, was injured on 22nd September 2015 while loading a truck in Turkana, was airlifted to Aga Khan University Hospital, operated on and discharged in October 2015. By a letter dated 24th February 2016 the Respondent stated his employment term had expired on 13th January 2016. The Claimant sued for unfair termination, seeking salary in lieu of notice, service pay, twelve months' compensation and unpaid salary from December 2015 to April 2016, totalling Kshs. 949,115/-. The Respondent denied unfair termination, contending the contract ended by effluxion of time, that it had paid sick leave above statutory minimums, and that the injury claim belonged to a pending Work Injury Benefits Act suit. The Respondent filed no submissions. The court held that the Claimant's contract, running from October 2014, was deemed renewed to October 2016 and that the January 2016 termination was premature; because the termination was on account of incapacity, Section 41 of the Employment Act required the employer to notify and hear the Claimant, which it did not do. The termination was therefore unfair and unlawful. Judgment was entered for the Claimant for three months' salary as compensation of Kshs. 120,000/-, with costs and interest at court rates from the date of judgment. The court declined to comment on the injury compensation claim, which is pending in a separate suit.

Key legal issues

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01

Whether termination on account of incapacity required a hearing under Section 41

Holding

Termination was unfair and unlawful because the Respondent did not afford the Claimant a hearing or notify him of the intention to terminate on account of incapacity

Reasoning

The court found the Claimant was let go on 13th January 2016 ostensibly because of his injury. Under Section 41 of the Employment Act he was entitled to a safeguard: he should have been notified of the intention to terminate on account of incapacity. The Respondent instead treated the contract as having lapsed by effluxion of time, misconstruing the contract start date; the premature termination of the second contract disregarded Section 41, entitling the Claimant to compensation of 3 months' salary.

p. 2
02

Correct date of contract expiry and whether termination was premature

Holding

The contract expired in October 2015 and the Claimant was deemed renewed to October 2016; termination in January 2016 was premature

Reasoning

The court reasoned that the Claimant's contract ran from 13th October 2014, that confirmation came six months after employment, and that the Respondent wrongly treated the contract as running from confirmation in January 2015 to January 2016. The actual expiry was October 2015 and the Claimant was deemed to have received a renewal to October 2016, so the January 2016 termination was premature and unfair absent Section 41 compliance.

p. 2

Legal principles established

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  • An employer must afford an employee a hearing and notification before terminating employment on account of incapacity, per Section 41 of the Employment Act
  • Termination must satisfy both substantive justification and procedural fairness

Court orders

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  1. 1.Judgment entered against the Respondent for 3 months' salary as compensation of Kshs. 120,000/-
  2. 2.Costs of the suit to the Claimant
  3. 3.Interest on the compensation at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 45(2)(c)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 35(1)(c)
  • Employment Act, 2007Section 30
  • Employment Act, 2007Section 10(2)(h) and (i)
  • Work Injury Benefits ActNot specified

Cases cited (2)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Joseph Ouko Lwambe v Royal Garment Industries EPZ Limited
    [2018] eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act, 2007 (claim for 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, "Anthony Kangethe Kanja v Oilfield Movers Limited [2021] KEELRC 378 (KLR)", Case Analysis (2021). Not stated in judgment (Memorandum of Claim dated 9th September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/378/eng@2021-11-24

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