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ELRCPartially AllowedCause No. 1132 of 2016· [2022] KEELRC 513 (KLR)

Evans Ondieki Sibwoga v Essential Management Consultancy [2022] KEELRC 513 (KLR)

Employment and Labour Relations Court
10 March 2022
AMAnna Ngibuini Mwaure
1,639 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ruled that paying one month's salary in lieu of notice cannot save an unfair termination — employers must have valid reasons and give a hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a machine attendant from 1st December 2009 under successive contracts, alleged that his employment was unlawfully terminated on 28th August 2015 after he sustained a workplace injury and filed suit for compensation. He claimed unpaid leave allowance, pension benefits, general damages, payment in lieu of notice, extra working allowances and house allowance, and contended he was never invited to any disciplinary hearing. The respondent admitted the termination but asserted it was contractual, relying on a clause permitting termination by one month's notice or salary in lieu, and said terminal dues were paid; it did not call a witness, attend the hearing or file submissions. The court framed two issues: whether there was a valid reason for termination and whether the claimant was entitled to the reliefs sought. Applying Sections 41, 43(1) and 45 of the Employment Act 2007, and applying the authorities on substantive justification and procedural fairness, the court found the respondent gave no reason for termination and denied the claimant a hearing, rendering the termination unfair and unlawful notwithstanding payment in lieu of notice. The court awarded general damages equivalent to five months' salary (Kshs.67,975.65) plus payment in lieu of notice (Kshs.13,595.13), totalling Kshs.81,570.78, with costs and interest; leave allowance, pension benefits, extra working allowances and house allowance were declined for want of proof or contractual provision, and a certificate of service was ordered within 30 days.

Key legal issues

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01

Validity of reason for termination

Holding

The termination was unfair and unlawful because the Respondent gave no valid reason and accorded the Claimant no hearing.

Reasoning

Under Sections 41, 43(1) and 45 of the Employment Act 2007, an employer must have a valid reason for termination and must explain the reason to the employee and allow him an opportunity to be heard. The Respondent issued a notice of termination without a reason and without inviting the Claimant to any disciplinary hearing. Payment in lieu of notice under the contract could not cure the absence of substantive justification and procedural fairness.

p. 3
02

Entitlement to reliefs

Holding

Claimant awarded the equivalent of five months' gross salary as general damages plus one month's pay in lieu of notice and a certificate of service; other heads declined for lack of proof.

Reasoning

The court, having found the termination unfair, exercised discretion to award five months' salary as compensation, taking into account the approximately five years of service. Payment in lieu of notice was awarded. Leave allowance, pension benefits, extra working allowances and house allowance were declined because they were not provided for in the letter of appointment or not proved.

p. 3

Legal principles established

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  • An employer must have a valid reason to terminate employment; even with notice, termination without a valid reason is unlawful.
  • Three mandatory requirements for a fair termination: a valid reason, a fair reason and a fair procedure.
  • Termination must satisfy both substantive justification and procedural fairness.
  • The employer bears the burden of proving the reason for termination under Section 43(1) of the Employment Act.

Court orders

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  1. 1.General damages equivalent to 5 months' salary (Kshs.13,595.13 x 5 = Kshs.67,975.65) for unfair termination
  2. 2.Payment in lieu of notice of Kshs.13,595.13
  3. 3.Total award of Kshs.81,570.78
  4. 4.Costs awarded to the Claimant
  5. 5.Interest at court rates from the date of judgment until full payment
  6. 6.Certificate of service to be issued to the Claimant within 30 days from the date of judgment

Authorities

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Legislation

  • Employment ActSections 41, 43(1), 45
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B

Cases cited (4)

  • MARY CHEMWENO KIPTUI VS KENYA PIPELINE COMPANY LIMITED
    (2014) eKLR
  • JOSEPH KEITANO IKABWA VS KHETIA GARMENT LIMITED
    (2016) eKLR
  • KENAFRIC INDUSTRIES LIMITED VS JOHN GITONGA NJERU
    (2016) eKLR
  • WALTER OGAL VS TEACHERS SERVICE COMMISSION
    (2013) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Evans Ondieki Sibwoga v Essential Management Consultancy [2022] KEELRC 513 (KLR)", Case Analysis (2022). Cause No. 1132 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/513/eng@2022-03-10

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