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ELRCPartially AllowedMemorandum of Claim dated 17th May 2018, amended 14th October 2019· [2021] KEELRC 1290 (KLR)

Joseph Irungu Kimani v Kensalt Limited [2021] KEELRC 1290 (KLR)

Employment and Labour Relations Court
8 July 2021
2,530 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 the employer had a valid reason to fire the worker but still must pay six months' salary for skipping a fair hearing.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as an Excavator Operator from 4th January 1994, sued for damages for unfair termination and terminal dues, including unpaid leave, house and travelling allowances, overtime underpayments, and severance pay. His employment was terminated on 19th February 2018 following his use of a D6 Dozzer machine, heavy machinery, to travel from the field to the office without authority. The Respondent maintained that his salary already included house allowance and that termination followed due process for gross misconduct. The court framed two issues: whether the termination was lawful and fair, and whether the remedies sought were due. It found a valid reason for termination under Section 43 of the Employment Act, since the Claimant's unauthorised use of the machine breached his employment terms; an assertion of authorisation made only in submissions was rejected as an afterthought. However, the termination was procedurally unfair under Section 41, as no hearing was held and the Claimant was not allowed a representative. The court awarded six months' salary in compensation. It also held that the employer's unilateral downgrade of the Claimant's leave entitlement from working days to consecutive days without consultation or written notice was unlawful, and awarded pay for Sundays and public holidays counted as leave. Claims for house and travelling allowances, overtime underpayments, and severance pay failed for lack of proof or basis. The liquidated sums attract interest at court rates, and the Claimant was awarded costs.

Key legal issues

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01

Whether there was a valid reason for termination

Holding

Yes - the Claimant's unauthorised use of the D6 Dozzer machine as transport breached the employment terms, giving the Respondent a valid reason under Section 43

Reasoning

The Claimant admitted using the machine as transport, alleging lack of employer transport. The machine was heavy machinery not to be removed from its designated area without authority. The Claimant later asserted authorisation by a Mr. Mishra in submissions only; that assertion was neither pleaded nor supported by testimony, and was treated as an afterthought. On the balance of probability, the Respondent genuinely believed the misconduct.

p. 3
02

Whether the termination procedure was fair under Section 41

Holding

No - the termination was procedurally unfair as no hearing was held and the Claimant was not given the chance to bring a representative

Reasoning

Section 41 requires the employer to explain the reasons, allow a fellow employee or shop floor representative to be present, and hear the employee's explanations. Although the Claimant was issued and answered a show cause memo, there was no evidence of a hearing at which his response was considered or an opportunity to have a representative. The Section 41 threshold was therefore not met, entitling the Claimant to compensation.

p. 4
03

Whether the unilateral change of leave entitlement from working days to consecutive days was lawful

Holding

No - the downgrade was unlawful; the claim for unpaid leave on this account was allowed

Reasoning

The change from 30 working days to 30 consecutive days of leave reduced the working days available. Sections 10(5) and 13(1) require consultation and written notification for changes to employment terms. There was no consultation with the Claimant and no specific communication of the change beyond a general circular. Relying on Atanda v JSC and Njuguna Mwangi v De La Rue, the downgrade was unlawful and an unfair labour practice.

p. 4

Legal principles established

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  • Under Section 43 of the Employment Act, the employer must prove valid reasons for termination on a balance of probability, being reasons it genuinely believed to exist
  • A party must plead and adduce evidence on its assertions; a party cannot shift the burden of proof to the opposing side
  • A unilateral employer downgrade of employment terms without consultation and written notification is unlawful and an unfair labour practice

Court orders

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  1. 1.Kshs. 554,400 being 6 months' salary in compensation for unfair termination
  2. 2.Kshs. 6,160 being 2 days' salary (Sunday, 23rd June 2017 and Monday, 24th June 2017 which was a public holiday) recovered as part of unpaid leave
  3. 3.Leave pay for all Sundays and public holidays counted as part of the Claimant's annual leave to be tabulated by the Respondent and paid to the Claimant within thirty (30) days from the date of the judgment
  4. 4.The liquidated amount to attract interest at court rates from the date of judgment until payment in full
  5. 5.The award pending tabulation to attract interest at court rates effective 30 days after judgment until payment in full
  6. 6.Claimant awarded costs of the case

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41
  • Employment ActSections 10(5) and 13(1)
  • Constitution of Kenya, 2010Article 41(1)

Cases cited (3)

  • Kenya Revenue Authority v Reuwel Waithaka Gitahi & 2 others
    [2019] eKLR
  • James Ang'awa Atanda & 10 others v Judicial Service Commission
    [2017] eKLR
  • Daniel Njuguna Mwangi v De La Rue Currency Security Print Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Joseph Irungu Kimani v Kensalt Limited [2021] KEELRC 1290 (KLR)", Case Analysis (2021). Memorandum of Claim dated 17th May 2018, amended 14th October 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1290/eng@2021-07-08

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