Irungu v Smoothtel & Data Solutions Limited (Cause 268 of 2016) [2022] KEELRC 31 (KLR)
The bottom line
#A Kenyan court awarded an ex-HR manager nine months' salary because her employer fired her without telling her the charges or giving her a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was procedurally fair under Section 41 of the Employment Act
The termination was unfair because the Claimant was never given a list of charges to respond to and scheduled hearings repeatedly failed to take place
The Court relied on the email exchanges showing the Claimant repeatedly requested the charges against her without success, and that meetings were called at short notice and often postponed or never took place. The Respondent could not fault her for non-attendance when it was its own conduct that prevented a hearing. Section 41 requires notice and a hearing where the employee is informed of the charges.
Whether the Claimant waived her claim by signing the termination letter and accepting final dues
No, because the discharge was obtained through coercion and cannot be valid
The Respondent relied on Felix Mutie Musango on the binding nature of discharge certificates, but the Court found it curious to rely on that case where the Respondent's own CEO coerced the Claimant to sign the discharge voucher without the words 'without prejudice'. A contract vitiated by coercion cannot stand; the waiver therefore failed.
Quantum of compensation for unfair termination
Nine months' salary (Kshs. 990,000/-) awarded, taking into account 13 months of service and the egregious conduct of the Respondent
Although the Claimant sought 12 months' compensation, the Court considered that she had worked only about 13 months, but tempered this with the Respondent's egregious conduct in denying her a fair hearing. The Court also awarded the admitted Kshs. 10,000/- deduction with interest from filing suit.
Legal principles established
#- An employer who fails to furnish an employee with the charges against her before a disciplinary hearing denies the employee a fair hearing under Section 41 of the Employment Act
- A discharge or settlement agreement obtained through coercion cannot stand and does not waive an employee's rights
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for 9 months salary as compensation for unfair and unlawful dismissal – Kshs. 990,000/-
- 2.Kshs. 10,000/- which remains outstanding as admitted by the Respondent
- 3.Interest at court rates on the compensation from the date of judgment till payment in full
- 4.Interest at court rates on the Kshs. 10,000/- from the date of filing suit till payment in full
- 5.Costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act, 2007, Sections 41, 43, 45 relied upon)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Irungu v Smoothtel & Data Solutions Limited (Cause 268 of 2016) [2022] KEELRC 31 (KLR)", Case Analysis (2022). Cause No 268 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/31/eng@2022-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.