Faith Mbeke Muthiani v Body By Design Fitness Spa [2021] KEELRC 885 (KLR)
The bottom line
#A Nairobi court ruled a spa therapist was unfairly fired without notice or hearing, awarding her Kshs.113,000 despite under one year of service.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's termination was fair, procedural and lawful
The termination was unfair, unprocedural and unlawful
The Claimant testified she was orally dismissed by a director after a machine broke down, without notice or disciplinary hearing. RW1's evidence that she walked away was disbelieved. No due process was demonstrated: no notice, no invitation to disciplinary proceedings, no response to the demand letter, and the director who allegedly dismissed her was not called as a witness. Section 45(3) could not shield the Respondent as the Claimant was not on probation and due process applies to all persons.
Whether an employee with less than 13 months' service is entitled to due process under Section 41(2) and Section 45(3) of the Employment Act
Yes - the submission that due process did not apply was rejected; Section 41(2) was declared unconstitutional in Monicah Mumbi Kibuchi and the Claimant was not on probation
The Respondent argued under Section 45(3) that an employee with under 13 months' service was not entitled to due process. The court held this untenable: the Claimant was not on probation, and Article 47 of the Constitution and the Fair Administrative Actions Act guarantee a fair hearing to all persons affected by administrative action. Further, Section 41(2), the basis of Section 45(3), was declared unconstitutional in Monicah Mumbi Kibuchi.
What reliefs flow from the unfair termination
One month's notice pay, prorated salary for February 2017, prorated service pay, and three months' salary as compensation for unfair termination, plus a certificate of service
Guided by Sections 35, 49, 50 and 51 of the Employment Act, the court awarded notice pay as no notice was issued, prorated salary for 22 days worked, prorated service pay, and compensation of three months' gross salary - considering the lack of evidence of the uniqueness of the role, the Claimant's qualifications, or how long she took to find other employment - while denying leave days, off days and overtime for lack of proof.
Legal principles established
#- All persons to be affected by an administrative action, including termination of employment regardless of length of service, are entitled to a fair hearing and due process under the rules of natural justice
- Where an employer fails to reduce the employment contract into writing, the court discerns the nature and terms of the contract from the provisions of the Employment Act
- An employer who alleges an employee abandoned employment bears the evidential burden; failure to call the director who allegedly effected the dismissal and absence of any due-process evidence points to unfair termination
Court orders
#- 1.A declaration that the Claimant's termination by the Respondent was unfair, unprocedural, and unlawful
- 2.Award of one month's salary in lieu of notice of Kshs.20,000
- 3.Award of unpaid salary for the 22 days worked in February 2017 of Kshs.14,667
- 4.Award of service pay on pro-rata basis of Kshs.18,333
- 5.Award of compensation for unfair termination of Kshs.60,000 (three months' gross salary)
- 6.Total award of Kshs.113,000 with interest at court rates from the date of judgment until payment in full
- 7.The Respondent ordered to issue the Claimant with a certificate of service
- 8.Costs to the Claimant based on the orders in the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (employment and labour relations matter)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Faith Mbeke Muthiani v Body By Design Fitness Spa [2021] KEELRC 885 (KLR)", Case Analysis (2021). Cause No 1032 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/885/eng@2021-09-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.