David Gituma Kirera v Majani Gardens Limited [2021] KEELRC 1195 (KLR)
The bottom line
#A Kenyan court ruled an employee's sacking was unfair because the employer never gave him a chance to respond before firing him.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a termination of the Claimant's employment
The court found on a balance of probabilities that the Claimant's case of termination was the more probable version
The parties advanced overlapping and conflicting versions of the termination. The court applied the balance of probabilities test and found the Claimant's account more convincing because the employer, having greater capacity, failed to involve the Claimant in resolving the termination issue and did not explain its laxity. The employer also failed to produce employment records as custodian under Sections 9 and 10 of the Employment Act, which burdened the Respondent.
Whether the termination was wrongful, unfair and unlawful
The termination was unfair; the Respondent failed to demonstrate substantive justification and procedural fairness
The Respondent's assertion that the Claimant absconded was not substantiated. The letter alleging desertion was not addressed to the Claimant and he was not called upon to defend himself. The Respondent did not tender evidence that it summoned the Claimant to show cause. Relying on the fairness test in Mutunga Nyamai v Chancery Restaurant Limited, termination requires both substantive justification and procedural fairness, neither of which was established.
Whether the Claimant is entitled to the relief sought
Partially - one month's notice pay and two months' compensation awarded; service pay, terminal benefits and fuller damages not granted
The court inclined to allow the claim but limited the award to one month's salary in lieu of notice and two months' salary as compensation for unlawful termination, totalling Kshs.101,400.00. The other heads claimed - service pay for 26 years, terminal benefits and general damages - do not appear in the final orders.
Legal principles established
#- The employer, as developer and custodian of employment records under Sections 9 and 10 of the Employment Act, bears the burden of producing those records to clarify termination
- Where parties give overlapping conflicting versions, the court resolves the dispute on a balance of probabilities
Court orders
#- 1.One (1) month's salary in lieu of notice of Kshs.33,800.00
- 2.Two (2) months' salary as compensation for unlawful termination of employment of Kshs.67,600.00
- 3.Total award of Kshs.101,400.00
- 4.Each party to bear their own costs of the claim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over wrongful and unfair termination of employment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamotho v Njuca Consolidaed Ltd (Employment and Labour Relations Appeal E005 of 2022) [2023] KEELRC 541 (KLR)[2023] KEELRC 541 (KLR)6 Mar 2023
Cite this brief
#Cite this brief
Caselaw, "David Gituma Kirera v Majani Gardens Limited [2021] KEELRC 1195 (KLR)", Case Analysis (2021). Statement of Claim dated 28th April, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1195/eng@2021-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.