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ELRCPartially AllowedELRC Cause No. 84 of 2016 (Consolidated with ELRC Causes Nos. 87, 90, 91 and 92 of 2016)· [2021] KEELRC 1960 (KLR)

Issa Hassan Hamisi & 4 others v Fast Energy Limited [2021] KEELRC 1960 (KLR)

Employment and Labour Relations Court
16 March 2021
HWHellen Wasilwa
1,631 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that sends workers home without notice, reasons, or a hearing must pay them for the rest of their contracts plus compensation.

What this practically means

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Executive summary

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Five claimants, employed by the respondent as pump attendants on renewable one-year contracts between 2013 and 2015 at about Kshs. 16,000 per month, claimed unfair termination. They alleged that on 1st June 2015 they were given a day off to allow restocking of fuel and told to report on 2nd June 2015, but on reporting were turned away and instructed to remain at home pending a call to resume work that never came. They stayed home for about eight months before filing suit. They sought notice pay, salary for the unexpired contract, holiday pay, house allowance, gratuity, compensation under Section 49(1)(c) of the Employment Act and costs. The consolidated causes proceeded ex parte for formal proof after the respondent, though served, entered no appearance and filed no response. Issa Hassan Hamisi testified and the other claimants' statements were adopted. The court found the claimants' employment proved through NHIF and NSSF statements and contracts, held there was no notice of disciplinary proceedings and no reason assigned, and found the terminations unfair and unjust under Section 45(2) of the Employment Act. Each claimant was awarded one month's salary in lieu of notice, unpaid salary for the remainder of the contract period, and three months' salary as compensation, with individual totals of Kshs. 210,000 (Issa Hassan Hamisi), 113,600 (Hezron Onyango), 210,000 (Rose Owenda), 210,000 (Rashid Abdi Nuri) and 150,000 (Moses Owenda). The respondent was ordered to pay costs plus interest at court rates from the date of judgment. Claims for holidays, house allowance and gratuity were not specifically awarded in the computation.

Key legal issues

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01

Whether the termination was unfair

Holding

Termination without notice, without reasons and without disciplinary process was unfair under Section 45(2) of the Employment Act

Reasoning

The claimants were sent home on 2nd June 2015 and never recalled. There was no notice of disciplinary proceedings and no reason was assigned for the termination. The respondent, though served, entered no appearance and filed no response, so the claim proceeded ex parte and the uncontroverted evidence established unfair termination under Section 45(2).

p. 3
02

Remedies for unfair termination

Holding

Each claimant awarded one month's salary in lieu of notice, unpaid salary for the remainder of the contract, and three months' salary as compensation

Reasoning

Having found the terminations unfair, the court awarded notice pay, salary for the unexpired contract term and three months' compensation, itemised per claimant and totalling Kshs. 210,000, 113,600, 210,000, 210,000 and 150,000 respectively, together with costs and interest.

p. 3

Legal principles established

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  • A termination is unfair where the employer fails to prove a valid and fair reason and a fair procedure

Court orders

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  1. 1.1 month's salary in lieu of notice to each claimant
  2. 2.Unpaid salary for the remainder of the contract period to each claimant
  3. 3.3 months' salary as compensation for breach of contract/unfair termination to each claimant
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 35
  • Employment ActSection 45(2)
  • Employment ActSection 49(1)(c)

Cases cited (1)

  • Boniface Nyaga Njiru -versus- Board of Trustee Gichugu water and sanitation Trust
    [2014] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the ELRC under the Employment Act 2007

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, "Issa Hassan Hamisi & 4 others v Fast Energy Limited [2021] KEELRC 1960 (KLR)", Case Analysis (2021). ELRC Cause No. 84 of 2016 (Consolidated with ELRC Causes Nos. 87, 90, 91 and 92 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1960/eng@2021-03-16

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