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ELRCPartially AllowedCause No 400 of 2018· [2021] KEELRC 1714 (KLR)

Collins Tembo v Awanad Enterprises Limited & another [2021] KEELRC 1714 (KLR)

Employment and Labour Relations Court
20 May 2021
1,123 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 an employee's sacking unfair because the employer never gave him a chance to defend himself, awarding him Kshs. 278,833 plus costs.

What this practically means

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Executive summary

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The Claimant, employed as an Electrician by the 1st Respondent from 1st July 2012 until 19th May 2017 at a final monthly salary of Kshs. 25,000, claimed compensation for unlawful termination and terminal dues. The claim was undefended and proceeded by formal proof. The termination letter cited failure to take instructions given by the CEO during daily operational briefs. The Claimant testified that he had been instructed to install electric locks in the CEO's office; he obtained quotations from seven shops and submitted them to the Operations Manager, received no response, and could not proceed. He said he was not afforded a hearing and that the termination letter dated 19th May 2017 was served on 29th June 2017. Applying Sections 43 and 41 of the Employment Act, the Court held that an employer must establish a valid reason by notifying the employee of the charges and allowing a response, the nexus between the evidential burden and procedural fairness. The Claimant was given no chance to respond, and the employer's own recommendation letter of 30th May 2017 showed he was a good employee. The termination was found substantively and procedurally unfair. The Court awarded six months' salary in compensation, one month's notice pay, 19 days' salary for May 2017 and five years' leave pay, totalling Kshs. 278,833, with interest at court rates from judgment, a certificate of service and costs. Severance pay lacked basis; monthly savings and holiday allowance were unproved and failed.

Key legal issues

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01

Whether the termination was lawful and fair

Holding

The termination was substantively and procedurally unfair. The stated reason was failure to take instructions from the CEO, but the Claimant was never given a chance to respond to the charges, contrary to the procedural fairness requirement.

Reasoning

Section 43 requires the employer to establish a valid reason, discharged by notifying the employee of the charges and allowing a response - the nexus with Section 41 procedural fairness. Here the Claimant was not given any chance to respond; had he been heard, he would have explained why the assignment was not done. The Court also inferred he was a good employee from the employer's own recommendation letter. In an undefended claim, the only conclusion was unfair termination.

p. 2
02

Whether the Claimant was entitled to the remedies sought

Holding

Partially. Six months' salary in compensation, one month's notice pay, 19 days' May 2017 salary and five years' leave pay were awarded; severance pay, monthly savings and holiday allowance claims failed.

Reasoning

Compensation was assessed at six months' salary taking into account the Claimant's length of service and the Respondents' unlawful and unfair conduct. Notice pay and days worked were awarded as claimed. Leave pay succeeded because the Respondents, who bore the obligation, produced no leave records to the contrary. Severance pay lacked a basis, and savings and holiday allowance were not proved.

p. 3

Legal principles established

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  • Section 43 of the Employment Act places the burden on the employer to establish a valid reason for termination, discharged through notifying the employee of the charges and allowing a response, which links to the procedural fairness requirements of Section 41.
  • Termination without affording the employee an opportunity to respond is procedurally unfair and attracts compensation.
  • In the absence of leave records to the contrary, a claim for leave pay succeeds.

Court orders

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  1. 1.Judgment entered in favour of the Claimant and against the 1st and 2nd Respondents jointly and severally for Kshs. 278,833, comprising 6 months' salary in compensation (Kshs. 150,000), 1 month's salary in lieu of notice (Kshs. 25,000), salary for 19 days in May 2017 (Kshs. 15,833) and leave pay for 5 years (Kshs. 87,500)
  2. 2.The award to attract interest at court rates from the date of judgment until payment in full
  3. 3.The Claimant to be issued with a certificate of service
  4. 4.Costs of the case awarded to the Claimant

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (s. 43 and s. 41 applied); specific constitutional/statutory invocation not stated in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Collins Tembo v Awanad Enterprises Limited & another [2021] KEELRC 1714 (KLR)", Case Analysis (2021). Cause No 400 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1714/eng@2021-05-20

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