Nahashon Maina & 5 others v Central Park Hotel [2021] KEELRC 895 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Compliance with section 41 of the Employment Act (procedure before termination)
The Respondent did not comply with section 41; the Claimants were not notified of the grounds, given a hearing, informed of the right to be accompanied, or given a reasoned decision.
The Respondent relied on two documents ('CP-1') purporting to show admission of malpractice. The court found they related only to the 1st and 5th Claimants, could not bind the others, did not name the 5th Claimant, were undated and did not specify charges. There was also no record of disciplinary proceedings or notification of the right to be accompanied.
Proof of gross misconduct under section 44 of the Employment Act
The grounds for termination were not proved; no cogent evidence of gross misconduct was tendered beyond the deficient 'CP-1' documents.
The Respondent asserted that the Claimants engaged in work malpractices justifying summary dismissal, but tendered no evidence. The only document mentioned only the 1st Claimant, was undated and did not specify the malpractice. Claims of meetings with the Claimants were likewise unsupported by evidence.
Effect of conditional claim withdrawal and staff clearance forms
The forms signed by the 2nd, 3rd, 4th and 6th Claimants evidenced a conditional settlement, conditional on payment, and as no payment was proved the settlement never crystallised.
The forms expressed settlement amounts in futuristic language and no Claimant signed as having received payment. Since payment details would be in the Respondent's custody, section 112 of the Evidence Act placed the burden of proving payment on the Respondent, which produced no payment records. Applying Thomas De La Rue, the discharge was not conclusive.
Remedies for unfair termination
Each Claimant was awarded one month's pay in lieu of notice under section 36, outstanding leave, salary for days worked in February 2017, six months' gross salary as compensation for unfair termination, and a Certificate of Service; service pay and public holiday claims were declined.
Pay in lieu of notice was due because termination letters took effect the same day. Leave and February days worked were acknowledged or computed pro-rata. Compensation was fixed at six months rather than the twelve sought, factoring in the absence of evidence of mitigation. NSSF contributions defeated service pay claims.
Legal principles established
#- Termination is unfair where the employer neither proves substantive grounds nor complies with the procedural requirements of section 41 of the Employment Act.
- A discharge voucher or claim withdrawal form is not of itself conclusive evidence of settlement; the court must interrogate whether it was executed voluntarily and whether its terms (including payment) were fulfilled where contested.
- Where a settlement release is conditional on payment and payment is not proved, the settlement does not crystallise and no discharge arises.
- Burden of proving alleged terminal payments lies on the employer, the details being within its special knowledge and control under section 112 of the Evidence Act.
Court orders
#- 1.Declaration that the termination of the Claimants by the Respondent is unfair and unlawful for want of substantive grounds and procedural fairness
- 2.Award to the Claimants of a consolidated sum of Ksh 933,939/= (Nahashon Maina Ksh 114,088; Philip Maina Ksh 124,699; Pennidictors Mbuvii Ksh 130,899; Horace Ongili Ksh 121,921; Lucy Atieno Ksh 130,332; Joshua Kibisu Ksh 312,000)
- 3.The Claimants to be issued with Certificates of Service
- 4.Interest on the amounts awarded at court rates
- 5.Costs of the claim to the Claimants
- 6.The award to be subject to the applicable statutory deductions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (rule 21 of the Employment and Labour Relations Court (Procedure) Rules, 2016 invoked for disposal on documents)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nahashon Maina & 5 others v Central Park Hotel [2021] KEELRC 895 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/895/eng@2021-09-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.