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ELRCPartially AllowedNot stated in the judgment text provided· [2021] KEELRC 1774 (KLR)

Henry Kinyiha Kamami v Star Brilliant (EPZ) K Limited [2021] KEELRC 1774 (KLR)

Employment and Labour Relations Court
30 April 2021
1,742 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 awarded an employee Kshs.280,000 after an employer dismissed him without notice or a hearing, skipping steps the law requires.

What this practically means

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Executive summary

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This was an undefended employment claim before the Employment and Labour Relations Court at Nairobi, in which the Claimant alleged that his employment as Purchasing Manager (Stores), on a permanent contract signed on 16 October 2016 at a monthly salary of Kshs.70,000, was unlawfully, unfairly and un-procedurally terminated on 8 November 2016 after only one month and seven days of service, without notice or a disciplinary hearing, contrary to his contract and Sections 41, 43 and 45 of the Employment Act, 2007. The Respondent, though served, neither entered appearance nor filed a defence, so the claim proceeded by way of the Claimant's affidavit evidence and written submissions. The Court framed three issues: existence of an employment relationship, whether the termination was wrongful, unfair and unlawful, and entitlement to reliefs. Applying authority that an undefended claimant must establish the employment relationship as a preliminary issue, the Court found the contract, payslip and termination letter sufficient proof of employment. On fairness, the Court held that hearing and notification are mandatory under Section 41, and since the Respondent tendered no evidence of a disciplinary process, the termination failed both the substantive and procedural fairness test. Judgment was entered for the Claimant: Kshs.140,000 as two months' salary in lieu of notice and Kshs.140,000 as compensation for unlawful termination, totalling Kshs.280,000, plus costs and interest at court rates from the date of judgment until settlement in full. The leave claim was refused because Section 28 of the Employment Act requires a minimum of two months' service for annual leave to accrue. The judgment was delivered virtually pursuant to COVID-19 directives.

Key legal issues

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01

Existence of an employment relationship in an undefended claim

Holding

The Claimant proved the employment relationship through the employment contract, payslip and termination letter

Reasoning

In an undefended claim, the claimant bears the burden of establishing all facts including the employment relationship. The Claimant produced a contract dated 16 October 2016, a payslip for October 2016 and a termination letter dated 8 November 2016, all issued by the Respondent, which the Court found sufficient proof of employment as Purchasing Manager (Stores) at Kshs.70,000 monthly.

p. 2
02

Whether the termination was wrongful, unfair and unlawful

Holding

Yes - the termination lacked procedural fairness under Section 41 and there was no evidence of valid justification

Reasoning

The Claimant was neither given a hearing before a disciplinary committee nor issued notice prior to termination. The Respondent filed no defence and tendered no evidence of any disciplinary process. Relying on the requirement of both substantive justification and procedural fairness, the Court held the dismissal unfair and unlawful as it violated the mandatory provisions of Section 41 of the Employment Act.

p. 3
03

Entitlement to reliefs

Holding

Two months' notice pay and two months' salary as compensation awarded; leave refused for insufficient service

Reasoning

The contract provided for two months' notice, so notice pay of Kshs.140,000 was awarded as prayed. Considering the short length of service and that the Claimant did not contribute to the termination, two months' salary (Kshs.140,000) was awarded as compensation for unfair termination. Leave was refused because Section 28 of the Employment Act requires a minimum of two months' service for annual leave to accrue.

p. 3

Legal principles established

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  • For a termination to be fair there must be both substantive justification and procedural fairness
  • In an undefended claim the claimant must establish all the facts, including the existence of an employment relationship, before proving unfair termination
  • Hearing and notification are mandatory requirements under Section 41 of the Employment Act before termination

Court orders

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  1. 1.Declaration that the Claimant's termination was unlawful
  2. 2.2 months' salary in lieu of notice of Kshs.140,000.00
  3. 3.Compensation for unlawful termination of Kshs.140,000.00 (total award Kshs.280,000.00)
  4. 4.Costs and interest at Court rates from the date of Judgment until settlement in full

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 28
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Ltd
    Industrial Cause No. 64 of 2012
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    (2014) eKLR
  • Monica Kanini Mutua v Al-Arafat Shopping Centre & another
    [2018] eKLR
  • Herman Ilangarwa Shidakwa v Armati Security Solutions Limited
    [2019] eKLR
  • Elijah Kipkoros Tonui v Ngara Opticians T/A Bright Eyes Limited
    (2014) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 28, 41, 43 and 45 invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Henry Kinyiha Kamami v Star Brilliant (EPZ) K Limited [2021] KEELRC 1774 (KLR)", Case Analysis (2021). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1774/eng@2021-04-30

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