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ELRCPartially Allowed· [2021] KEELRC 1151 (KLR)

Samson Irungu Karuma v Kenya Nut Company Limited [2021] KEELRC 1151 (KLR)

Employment and Labour Relations Court
29 July 2021
HWHellen Wasilwa
2,459 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a worker didn't resign as claimed, finding his termination unfair and awarding him over Kshs. 127,000.

What this practically means

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Executive summary

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The claimant, employed as a driver/tractor driver from 10th February 2008, sued the respondent for unlawful termination, off days and public holiday pay, seven years' unpaid leave, 18 days' salary for March 2016, one month's pay in lieu of notice, compensation for unfair termination and a certificate of service. The respondent admitted the employment but asserted that in March 2016, during investigations into theft of farm produce, the claimant tendered a resignation letter dated 18th March 2016 and was paid his terminal dues. The claimant testified he was forced to sign a letter drafted by the respondent's head of security without explanation and was never paid. The court noted the general rule that a party of full age is bound by his signature but, invoking the non est factum exception and the reasoning of the Court of Appeal in CA No. 27/2017 (Mombasa) citing Levison v Patent Steam Carpet Cleaning Co Ltd, found the letter was not written by the claimant and that he never resigned. Having been terminated, the claimant was entitled to the notification and hearing procedure under section 41 of the Employment Act, which was not followed; no disciplinary process was instituted and he was condemned unheard. The court found the termination unfair and awarded one month's salary in lieu of notice (Kshs. 10,139.85), salary for 18 days (Kshs. 6,083.91), eight months' salary as compensation for unlawful termination (Kshs. 81,118.80) and leave pay for three years (Kshs. 30,419.55), totalling Kshs. 127,762.11 less statutory deductions, the remainder of the claim being unproved. Costs and interest from the date of judgment were awarded to the claimant.

Key legal issues

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01

Whether the claimant resigned voluntarily

Holding

The court found the claimant did not resign; the resignation letter was written by another party and the claimant was terminated

Reasoning

Although the claimant signed the letter of resignation dated 18/3/2016, he testified he was forced to sign and the letter was written by the respondent's head of security. The court reasoned that a person intending to resign would write his own letter, and found the claimant never resigned but was terminated.

p. 3
02

Whether the termination was procedurally fair

Holding

The termination was unfair because no disciplinary process was instituted and the claimant was condemned unheard

Reasoning

Section 41 of the Employment Act requires an employer, before terminating on grounds of misconduct, to explain the reasons in a language the employee understands and to hear representations. The respondent conceded no disciplinary hearing was conducted against the claimant, rendering the termination unfair.

p. 4
03

Remedies payable

Holding

Notice pay, salary for 18 days, 8 months' compensation and 3 years' leave pay were awarded; the balance of the claim failed for want of proof

Reasoning

The court quantified notice pay at Kshs. 10,139.85, salary for 18 days at Kshs. 6,083.91, compensation at 8 months' salary (Kshs. 81,118.80) and leave pay for 3 years at Kshs. 30,419.55, holding the remainder of the claim unproved.

p. 4

Legal principles established

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  • A person of full age and understanding is normally bound by his signature to a document whether he reads it or not, subject to the plea of non est factum
  • Before terminating employment on grounds of misconduct, an employer must explain the reasons to the employee and hear representations under section 41 of the Employment Act

Court orders

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  1. 1.1 month salary in lieu of notice of Kshs. 10,139.85
  2. 2.Salary for 18 days worked in March 2016 of Kshs. 6,083.91
  3. 3.Compensation for unlawful termination equal to 8 months' salary of Kshs. 81,118.80
  4. 4.Leave pay for 3 years of Kshs. 30,419.55
  5. 5.Total payable of Kshs. 127,762.11 less statutory deductions
  6. 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Actsections 28, 41, 42(1), 44(3), 44(4), 51, 74
  • Evidence Actsections 70, 107

Cases cited (6)

  • Dama Charo –v- Municipal Council of Mombasa Taib Alubajaber & another
    [2018] eKLR
  • Ahmed Mohammed Noor –v- Abdi Aziz Osman
    [2019] eKLR
  • Raila Amolo Odinga & Another –v- IEBC & 2 others
    Presidential Election Petition No. 1 of 2017
  • Fancy Jeruto Cherop & another –v- Hotel Cahay Limited
    [2018] eKLR
  • Levison VS Patent Steam Carpet Cleaning Company LTD
    (1977) 3 ALL ER 498
  • C.A No. 27/2017 at Mombasa (Court of Appeal, Visram, Karanja & Koome JJA)
Jurisdiction invoked
First-instance claim under the Employment Act, 2007 (unfair termination and employment benefits)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Samson Irungu Karuma v Kenya Nut Company Limited [2021] KEELRC 1151 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1151/eng@2021-07-29

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