Moses Warukira Kibochi v Lotos Property Management Limited (Cause 598 of 2017) (Employment and Labour) [2021] KEELRC 1435 (KLR)
The bottom line
#Firing an employee by phone without notice, a hearing, or written reasons is unfair termination under Kenyan law, costing this employer over Ksh.210,000.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the claimant's employment was lawful and in accordance with fair procedure under sections 41, 43 and 45 of the Employment Act, 2007
- 2.What remedies and terminal dues are payable to the claimant
Key legal issues
#Whether the termination was procedurally fair
The termination was unfair; sections 41, 43 and 45 of the Employment Act, 2007 were not followed as the claimant was given no notice, hearing or written reasons
The claimant's uncontroverted evidence showed termination by phone message without reasons. Fair labour practice required notice, an opportunity to defend any misconduct, and a fellow employee of his choice to attend. With no appearance or defence by the respondent, the claimant's evidence was taken as correct and the statutory safeguards under sections 41, 43 and 45 held not to have been observed.
Appropriate remedy for unfair termination of a fixed-term contract
Payment of the unspent remainder of the fixed-term contract (5 months, Ksh.150,000) is sufficient compensation in lieu of 12 months' salary
Section 49 permits award of the remainder of the contract term and/or compensation up to 12 months. Because the claimant held a one-year fixed-term contract and legitimately expected to serve it, awarding the 5 unspent months was held sufficient. Salary for November 2016, notice pay under section 35 and a certificate of service under section 51 were also due.
Legal principles established
#- Before employment can lawfully be terminated, section 41 of the Employment Act must be adhered to, requiring notice, hearing and written reasons
- An employer who fails to prove fair procedure effects an unfair termination under section 45(2)(c)
Court orders
#- 1.Judgment entered for the claimant against the respondent for 5 months compensation at Ksh.150,000
- 2.Notice pay of Ksh.30,000
- 3.Salary for November 2016 of Ksh.30,000
- 4.Certificate of service to issue
- 5.Costs of the suit to the claimant
- 6.Interest at court rates on dues under (a), (b) and (c) if not paid within 60 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)
Relief refused
#Compensation for 12 months' salary
The court found payment of the remainder of the fixed-term contract to be sufficient compensation instead of 12 months' salary
Costs
Costs of the suit payable to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In employment and labour relation, before employment can lawfully be terminated, section 41 of the Employment Act, 2007 must be adhered to. Such requires issuance of a notice, hearing and written reasons be given to the employee.
the payment of the remainder of the term shall be sufficient compensation. The contract had 5 more months unspent and total due is Ksh.150, 000.
(f) Where dues under (a), (b) and (c) are not paid within 60 days, interests shall accrue based on court rates.
Echoingly, judgement is hereby entered for the claimant against the respondent in the following terms;
Issues in the judgment
#Internal date inconsistency: the claimant is said to have been terminated on 11th November 2016, yet the judgment states employment terminated on 18th December 2016; the judgment also describes the claimant as having worked only 5 months of a contract commencing 21st May 2016
The authority Maxwell Miyawa is introduced with 'See' in the court's own reasoning, making its citation treatment ambiguous between court citation and party citation; it is not attributed to counsel
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Warukira Kibochi v Lotos Property Management Limited (Cause 598 of 2017) (Employment and Labour) [2021] KEELRC 1435 (KLR)", Case Analysis (2021). Cause No. 598 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1435/eng@2021-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.