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ELRCPartially AllowedCause No 1032 of 2017· [2021] KEELRC 885 (KLR)

Faith Mbeke Muthiani v Body By Design Fitness Spa [2021] KEELRC 885 (KLR)

Employment and Labour Relations Court
10 September 2021
2,582 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, a Spa Therapist employed by the Respondent from 2nd May 2016 to 22nd February 2017 at a monthly salary of Kshs.20,000, claimed Kshs.508,777 in terminal dues arising from an alleged oral termination on 22nd/23rd February 2017 by a director of the Respondent after a machine she was operating broke down. The Respondent admitted the employment but alleged the Claimant absconded duty from 23rd February 2017, constructively terminating her own employment, and accused her of gross misconduct in failing to account for monies and damaging a machine. The court framed three issues: fairness of the termination, the reliefs due, and costs. It found no evidence of any due process - no notice, no disciplinary hearing, no response to the demand letter, and the director who allegedly dismissed the Claimant was not called as a witness. The Respondent's argument that an employee with less than 13 months' service was not entitled to due process under Section 45(3) of the Employment Act was rejected: the Claimant was not on probation, Article 47 of the Constitution and the Fair Administrative Actions Act guarantee due process to all, and Section 41(2) had been declared unconstitutional in Monicah Mumbi Kibuchi. The court declared the termination unfair, unprocedural and unlawful and awarded Kshs.113,000 (notice pay Kshs.20,000; prorated February salary Kshs.14,667; prorated service pay Kshs.18,333; three months' compensation Kshs.60,000) with interest at court rates, ordered a certificate of service, and awarded costs to the Claimant. Claims for unutilized leave days, off days and overtime failed for lack of proof.

Key legal issues

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01

Whether the Claimant's termination was fair, procedural and lawful

Holding

The termination was unfair, unprocedural and unlawful

Reasoning

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.

p. 3
02

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

Holding

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

Reasoning

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.

p. 3
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What reliefs flow from the unfair termination

Holding

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

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.A declaration that the Claimant's termination by the Respondent was unfair, unprocedural, and unlawful
  2. 2.Award of one month's salary in lieu of notice of Kshs.20,000
  3. 3.Award of unpaid salary for the 22 days worked in February 2017 of Kshs.14,667
  4. 4.Award of service pay on pro-rata basis of Kshs.18,333
  5. 5.Award of compensation for unfair termination of Kshs.60,000 (three months' gross salary)
  6. 6.Total award of Kshs.113,000 with interest at court rates from the date of judgment until payment in full
  7. 7.The Respondent ordered to issue the Claimant with a certificate of service
  8. 8.Costs to the Claimant based on the orders in the judgment

Authorities

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Legislation

  • Employment ActSection 9
  • Employment ActSection 35
  • Employment ActSection 41(2)
  • Employment ActSection 45(3)
  • Employment ActSections 49, 49(1)(c) and 50
  • Employment ActSection 51
  • Constitution of KenyaArticle 47
  • Fair Administrative Actions ActVarious provisions

Cases cited (5)

  • Robai Musinzi Vs Mohammed Sofdar Khan
    (2012) eKLR
  • Joseph Okelo Adhiambo and another Vs YJ Elmi & others
    (2012) eKLR
  • Monicah Mumbi Kibuchi & 6 others Vs Mount Kenya University & Another
    ELRC Petition No.94 of 2016
  • Wilson Mudogo Mulima Vs AGS Worldwide Movers (K) Limited
    (2014) eKLR
  • Eastern Produce (K) Limited Vs John Lumumba Mukosero
    Eldoret Civil Appeal No.25 of 1998
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (employment and labour relations matter)

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, "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.