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ELRCPartially AllowedMemorandum of Claim dated 22nd November 2017· [2022] KEELRC 113 (KLR)

Kisongochi v Fortcom Holdings Limited (Cause 2337 of 2017) [2022] KEELRC 113 (KLR)

Employment and Labour Relations Court
16 June 2022
AMAnna Ngibuini Mwaure
2,713 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 ruled an employee was unfairly constructively dismissed because the employer gave no valid reason and skipped the mandatory disciplinary process.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a cashier from 2011 on a final salary of Kshs. 24,000/- per month, claimed she was constructively dismissed on 1st September 2017. She was suspended by a letter dated 5th July 2017 which stated only that a disciplinary case had been brought to the Respondent's Director's attention, without disclosing the allegations, and suspended her salary for three months. Her advocates protested; the Respondent then recalled her to work on 1st September 2017, but on reporting she was told by the Human Resource Officer to go away and await further communication, which never came. She sought declarations of unfair constructive dismissal, terminal dues and compensatory damages of Kshs. 384,000/-, costs and interest. The Respondent denied constructive dismissal, alleging gross misconduct, misfiling of receipts and desertion, but tendered no evidence at trial, leaving the Claimant's testimony uncontroverted. The Court framed two issues: whether the Claimant was constructively dismissed, and the remedies payable. Relying on sections 41, 43, 45 and 47 of the Employment Act 2007 and authorities including Coca Cola v Maria Kagai Ligaga, Mary Chemweno Kiptui and Walter Ogal Anuro, the Court held there was no valid reason for the suspension or termination and no evidence of compliance with section 41's mandatory disciplinary procedure. It declared the Claimant constructively, unfairly and unlawfully dismissed. She was awarded one month's salary in lieu of notice (Kshs. 24,000/-), salary for the suspension period (Kshs. 72,000/-), six months' salary as compensation (Kshs. 144,000/-), costs and interest at court rates, totaling Kshs. 240,000/-.

Key legal issues

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01

Whether the Claimant was constructively dismissed

Holding

The Court found the Respondent failed to give a valid reason for the suspension and termination, adduced no evidence, and did not comply with section 41 of the Employment Act; constructive dismissal declared unfair and unlawful.

Reasoning

The Respondent did not tender evidence, so the Claimant's testimony remained uncontroverted. The suspension letter stated only that a disciplinary case had been brought, which the Court held could never suffice as a valid reason. There was no evidence of a show-cause letter or disciplinary hearing as required by section 41. Applying sections 43 and 45 of the Employment Act and the principles in Coca Cola v Ligaga, Mary Chemweno Kiptui and Walter Ogal Anuro, the termination lacked both substantive justification and procedural fairness, amounting to constructive dismissal.

p. 5
02

The remedies the Court should grant

Holding

The Court awarded one month's salary in lieu of notice, salary for the three-month suspension period, six months' salary as compensation, costs and interest.

Reasoning

Having found unfair constructive dismissal, the Court exercised its discretion under the Employment Act to award terminal dues and compensation. It awarded notice pay of Kshs. 24,000/-, the Kshs. 72,000/- withheld during suspension, and six months' salary equivalent as compensation rather than the twelve months claimed, totaling Kshs. 240,000/-, plus costs and interest at court rates.

p. 6

Legal principles established

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  • A termination of employment is unfair where the employer fails to prove a valid and fair reason and fair procedure
  • The burden of justifying the grounds for termination rests on the employer
  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness

Court orders

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  1. 1.Declaration that there was constructive dismissal of the Claimant which was unfair and unlawful
  2. 2.One month salary in lieu of notice of Kshs. 24,000/-
  3. 3.Salary during the 3 months suspension of Kshs. 72,000/-
  4. 4.Six months' salary equivalent being compensation of Kshs. 144,000/-
  5. 5.Costs of the suit
  6. 6.Interest at Court rates from the date of judgment till full payment

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 45(1) and (2)
  • Employment Actsection 47(1)(5)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Stanley Mwangi Gachungu versus Barclays Bank of Kenya Ltd
    (2019) eKLR
  • Kenya Union of Commercial Food and Allied Workers versus Meru North Farmers Sacco Limited
    Cause No. 74 of 2013
  • Mary Chemweno Kiptui v Kenya Pipeline Company Ltd
    [2014] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Coca Cola East & Central Africa Limited v Maria Kagai Ligaga
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act 2007 (sections 41, 43, 45 and 47)

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, "Kisongochi v Fortcom Holdings Limited (Cause 2337 of 2017) [2022] KEELRC 113 (KLR)", Case Analysis (2022). Memorandum of Claim dated 22nd November 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/113/eng@2022-06-16

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