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ELRCPartially AllowedNot stated in the judgment (ELRC Cause, Bungoma)· [2021] KEELRC 461 (KLR)

Christopher Opondo Mulanga v Data Rush Services Limited [2021] KEELRC 461 (KLR)

Employment and Labour Relations Court
11 November 2021
3,696 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who terminates an employee without giving reasons or a hearing must pay up to 12 months' salary, even if notice was properly paid.

What this practically means

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Executive summary

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The Claimant, formerly employed as a rider by the Respondent from 10th April 2007 until termination by letter dated 9th February 2016 (effective 11th February 2016), sued for damages for unfair termination (12 months' salary), house allowance, service pay, a declaration that his termination was unfair, and costs. He testified that he was not given reasons for the termination and was not called for a hearing; his last written contract expired in August 2012 and he continued working without one. The Respondent, through its Human Resource and Administration Manager, maintained that the termination was in compliance with the contract, that one month's salary in lieu of notice was paid, that a union-negotiated ex gratia payment of Kshs. 77,000/- was prepared but not collected, and that house allowance was consolidated in the salary and NSSF contributions excluded service pay. The court, on four agreed issues, found that the termination letter did not disclose reasons, that no hearing was accorded, and that the termination was substantively and procedurally unfair under sections 43 and 45 of the Employment Act. It rejected the Respondent's reliance on freedom-of-contract jurisprudence, holding that the Employment Act 2007 and the 2010 Constitution superseded the common-law position, and followed Kenfreight v Nguti. Twelve months' gross salary (Kshs. 196,528.80) was awarded as compensatory damages with interest at court rates; a certificate of service was ordered; house allowance and service pay claims were dismissed; costs were awarded to the Claimant.

Key legal issues

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01

Whether the termination letter disclosed reasons for termination

Holding

The letter did not disclose reasons; it merely stated the employment was terminated as per the contract

Reasoning

The court examined the termination letter dated 9th February 2016 produced by both parties and found it simply stated that the employer had decided to terminate the employment as per the contract without any reasons. Section 43 of the Employment Act places the burden of proving reasons on the employer, failing which the termination is deemed unfair.

p. 3
02

Whether the Claimant was accorded a hearing

Holding

No hearing was accorded before termination

Reasoning

It was apparent from the pleadings and proceedings that the Claimant was not given any hearing before termination. The Respondent admitted it did not hear the Claimant as required under section 41 of the Employment Act. Absence of a hearing rendered the termination procedurally unfair.

p. 3
03

Whether contractual compliance alone validates termination

Holding

No; compliance with contractual notice does not oust statutory requirements of fairness

Reasoning

The Respondent argued that termination per contract terms with one month's pay in lieu of notice was sufficient, relying on Menginya Salim Mungai. The court held that case rested on pre-Employment Act common law freedom of contract, superseded by the 2007 Employment Act and the 2010 Constitution, and followed Kenfreight v Nguti on the duty to explain reasons and hear the employee.

p. 4
04

Entitlement to compensation

Holding

12 months' gross salary awarded as compensatory damages

Reasoning

Considering the Claimant's over 8 years of unblemished service, the unavailability of reinstatement, and his innocence in the termination, the court found the maximum 12 months' compensation justified under section 49, computed on his last gross salary of Kshs. 16,377.40.

p. 4
05

Whether the Claimant was employed without an active contract

Holding

The Claimant worked without a written contract from September 2012 until termination in February 2016

Reasoning

The last written contract expired in August 2012 (exhibit DRSL4). The Respondent's claim that the contract had ended at termination was found untrue; the Claimant continued offering services without a contract, so the termination could not rest on expiry of a contract.

p. 3

Legal principles established

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  • An employer must prove valid and fair reasons for termination and accord the employee a hearing; termination without reasons or hearing is unfair under sections 43 and 45 of the Employment Act notwithstanding compliance with contractual notice
  • The common-law freedom-of-contract position allowing termination of a employment contract without reasons no longer applies after the Employment Act 2007 and the Constitution 2010
  • A member of NSSF is not entitled to service pay under section 35(6)(d) of the Employment Act

Court orders

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  1. 1.Declaration that the Respondent's termination of the Claimant's employment by letter dated 9th February 2016 without reason and hearing was unfair and unlawful
  2. 2.Compensatory damages for 12 months' gross salary of Kshs. 196,528.80/-, subject to statutory deductions
  3. 3.Interest on the award at court rates from the date of judgment until payment in full
  4. 4.Issuance of a certificate of service under section 51 of the Employment Act
  5. 5.Costs of the suit to be borne by the Respondent
  6. 6.Dismissal of the claims for house allowance and service pay

Authorities

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Legislation

  • Employment Actsection 49
  • Employment Actsection 35
  • Employment Actsection 35(6)(d)
  • Employment Actsection 36
  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45(1)
  • Employment Actsection 45(3)
  • Employment Actsection 51
  • Constitution of Kenya 2010generally (adopts international best practices)

Cases cited (6)

  • National bank of Kenya Ltd v Pipe Plastic Samkolit (k)ltd and another
    (2001) eKLR
  • Pius Kimaiyo Langat v Cooperative Bank of Kenya
    (2017) eKLR
  • Kenya Revenue Authority v Menginya Salim Mungai
    (2010) eKLR
  • Kenfreight (E.A) Limited v Benson K. Nguti
    (2016) eKLR
  • Hassanath Wanjiku v Vanela House of Coffee
    (2018) eKLR
  • John Magiri Heho v Kenya Interntaional Limited
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance claim for unfair termination); no specific constitutional article 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, "Christopher Opondo Mulanga v Data Rush Services Limited [2021] KEELRC 461 (KLR)", Case Analysis (2021). Not stated in the judgment (ELRC Cause, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/461/eng@2021-11-16

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