Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 266 of 2018· [2021] KEELRC 1945 (KLR)

Shibedi Zebedee Achesa v Kenga Equatorial Hotels t/a Mombasa Continental Resort [2021] KEELRC 1945 (KLR)

Employment and Labour Relations Court
18 March 2021
LNLINNET NDOLO
1,456 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded a chef Kshs. 733,417 after finding his hotel employer unfairly suspended, demoted and fired him without following the law.

What this practically means

#

Executive summary

#
Shibedi Zebedee Achesa, employed by the Respondent from December 2009 as a Cook and rising to Senior Sous Chef, claimed his employment was unfairly terminated on 27th December 2016 after a series of disciplinary measures: a two-week unpaid suspension in October 2016, a demotion in November 2016, and a further 14-day suspension in December 2016. He sought 12 months' salary in compensation, three years' leave dues, salary during suspension, costs and interest. The Respondent denied unfairness, alleging persistent poor performance, complaints from guests and staff, prior warnings, and full payment of terminal dues. The court framed two issues: the lawfulness and fairness of the termination, and entitlement to remedies. Applying the settled standard that an employee facing poor-performance allegations must be told of shortcomings and given a reasonable opportunity to improve, the court found the unpaid suspensions and demotion were punitive measures taken without the procedural fairness safeguards of Section 41 of the Employment Act. No objective performance appraisal was conducted, prior commendations contradicted the poor-performance claim, and the Respondent failed to answer allegations of personal vendetta and staffing failures. The termination was held substantively and procedurally unfair. The court awarded 10 months' salary in compensation, salary during the unlawful suspension, and prorata leave for six months of 2016, totaling Kshs. 733,417 with interest and costs to the Claimant.

Key legal issues

#
01

Whether the termination was lawful and fair

Holding

The allegations of poor performance were not proved; the termination was substantively and procedurally unfair. Punitive suspensions and demotion were imposed without Section 41 procedural safeguards, no objective performance appraisal was conducted, and the Respondent did not respond to allegations of vendetta and systemic failures.

Reasoning

The stated reason for termination was poor performance. The proper procedure is to point out shortcomings and allow improvement over a reasonable time. The suspensions without pay and demotion were punitive and required Section 41 safeguards, which were not complied with. Prior commendations and the absence of any appraisal undermined the poor-performance allegation, which the Respondent did not substantiate.

p. 3
02

What remedies are the Claimant entitled to

Holding

Compensation of 10 months' salary, salary during suspension and prorata leave pay for 6 months were awarded; the 12-month compensation claim and 3-year leave claim were partially disallowed.

Reasoning

In assessing compensation the court considered the Claimant's length of service and the Respondent's unlawful conduct. Having found the suspension unlawful, salary during suspension was allowed. Leave records showed leave taken for 2015/2016, so only prorata leave for 6 months in 2016 was allowed.

p. 3

Legal principles established

#
  • Before taking punitive disciplinary actions such as unpaid suspension or demotion, an employer must avail the employee the procedural fairness safeguards under Section 41 of the Employment Act
  • Where an employer alleges poor performance, the employee must be notified of the shortcomings and given an opportunity to improve over a reasonable period

Court orders

#
  1. 1.Judgment entered in favour of the Claimant against the Respondent for Kshs. 733,417 comprising 10 months' salary in compensation (Kshs. 650,000), salary during suspension of 28 days (Kshs. 60,667) and prorata leave pay for 6 months (Kshs. 22,750)
  2. 2.The award shall attract interest at court rates from the date of judgment until payment in full
  3. 3.The Claimant to have the costs of the case

Authorities

#

Legislation

  • Employment ActSection 41

Cases cited (2)

  • Kenya Science Research International Technical and Allied Workers Union (KSRITAWU) v Stanley Kinyanjui and Magnate Ventures Ltd
    Cause No. 273 of 2010
  • Jane Wairimu Machira v Mugo Waweru and Associates
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (Employment Act)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Shibedi Zebedee Achesa v Kenga Equatorial Hotels t/a Mombasa Continental Resort [2021] KEELRC 1945 (KLR)", Case Analysis (2021). Cause No 266 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1945/eng@2021-03-18

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