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ELRCPartially AllowedNot stated in the judgment as provided· [2021] KEELRC 2199 (KLR)

Kennedy Ochieng Nyalianga v Nyati (2002) Kenya Limited [2021] KEELRC 2199 (KLR)

Employment and Labour Relations Court
5 February 2021
OMOnesmus N. Makau
751 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant sued on 1 August 2016 alleging that the Respondent employed him as a Welder from 1 June 2000 and summarily dismissed him unfairly and unlawfully on 10 September 2015. He described how, on 8 September 2015 while installing down pipes at Boito Tea Factory in Kericho, he and a colleague sought a longer electric cable from a nearby firm; after lunch they were denied entry to the workplace on the foreman's instructions, told to go home, and on 10 September 2015 the foreman informed him by SMS that his employment had been terminated. He sought a declaration that the dismissal was unlawful, Kshs. 186,950, Kshs. 138,000 as compensation for unfair termination, a certificate of service, costs and interest. The Respondent was served but filed no defence and called no evidence. The court framed two issues: whether the Claimant was unfairly dismissed and whether he was entitled to the reliefs sought. Applying section 45 of the Employment Act, the court held the employer bore the burden of proving a valid reason and fair procedure, which it failed to discharge, and found the dismissal unfair and unlawful. The court awarded one month's notice pay (Kshs. 11,500), twelve months' salary as compensation (Kshs. 138,000), and nine days' unpaid salary (Kshs. 3,450), totalling Kshs. 152,950, subject to statutory deductions, with costs and interest at court rates. Claims for severance pay and service pay were dismissed, the latter because the Claimant was an NSSF member whose contributions were remitted regularly. Judgment was delivered online pursuant to Covid-19 directives.

Key legal issues

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01

Whether the Claimant's summary dismissal was unfair and unlawful

Holding

The dismissal was unfair and unlawful within the meaning of section 45 of the Employment Act.

Reasoning

Section 45 requires the employer to prove a valid reason for termination and adherence to a fair procedure. The Respondent, though served, filed no defence and called no evidence, so nothing controverted the Claimant's account that he was denied entry to the workplace and dismissed by SMS without a hearing or any valid reason. The burden on the employer was therefore not discharged, and the unchallenged claim succeeded.

p. 1
02

What reliefs flow from the unfair dismissal

Holding

One month's notice pay, 12 months' salary as compensation, and 9 days' unpaid salary were awarded; severance and service pay were refused.

Reasoning

In quantifying compensation the court considered the Claimant's 15 years of service without any warning letter and that he did not contribute to the dismissal through misconduct. The claim for 9 days' unpaid salary was granted as there was no evidence of payment. Severance pay failed because there was no redundancy, and service pay failed because the Claimant was an NSSF member whose contributions the employer remitted regularly.

p. 2

Legal principles established

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  • Under section 45 of the Employment Act, a termination is unfair if the employer fails to prove both a valid reason and a fair procedure.
  • Where a respondent fails to file a defence or call evidence, the uncontroverted claim stands proved and the employer bears the burden under section 45.

Court orders

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  1. 1.Judgment entered for the Claimant: one month salary in lieu of notice of Kshs. 11,500.00
  2. 2.Compensation for unfair termination of Kshs. 138,000.00 (12 months' salary)
  3. 3.Nine days' unpaid salary of Kshs. 3,450.00
  4. 4.Total award of Kshs. 152,950.00 subject to statutory deductions
  5. 5.Costs of the suit to the Claimant with interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Actsection 45
  • ELRC Procedure RulesRule 28(3)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim)

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, "Kennedy Ochieng Nyalianga v Nyati (2002) Kenya Limited [2021] KEELRC 2199 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2199/eng@2021-02-05

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