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ELRCPartially AllowedStatement of Claim dated 17th January, 2020· [2022] KEELRC 553 (KLR)

Kenya Union of Comercial, Food and Allied Workers v Magunas Super Stores Limited [2022] KEELRC 553 (KLR)

Employment and Labour Relations Court
9 March 2022
1,397 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer could not rely on a notice clause to fire a worker without a valid reason and a hearing, and paid twelve months' salary.

What this practically means

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Executive summary

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The Claimant union brought a Statement of Claim dated 17th January, 2020 on behalf of its member, Margaret Nyambura Mwangi, complaining of the unlawful and unfair termination of her employment by the Respondent. The grievant was allegedly employed on 20th September, 2016 as a Shop Assistant at a monthly salary of Kshs.16,000.00 without house allowance, worked at the Kitui branch, was promoted to supervisor of the cashier, and was issued with a notice of termination on 10th February, 2018 for no reason, before the expiry of her contract due on 25th June, 2018. The Claimant sought reinstatement or, in the alternative, terminal dues totalling Kshs.660,110.15, including notice pay, off days, prorate leave, house allowance, overtime and compensation for unlawful termination. The Respondent denied the claim, asserting the employment was on six-month renewable contracts terminable by one month's written notice, that the grievant received one month's notice lapsing on 11th March, 2018, and that outstanding leave days were compensated in a clearance certificate. The court framed three issues: wrongfulness of the termination, entitlement to relief, and costs. It found the termination unlawful because no reason was offered and the grievant was never heard, holding the contractual notice clause to be no defence and the termination a blatant contravention of Section 41 of the Employment Act. The court allowed the claim, awarded twelve months' compensation of Kshs.217,813.80 and ordered the Respondent to bear the costs. Judgment was delivered at Nyeri on 9th March, 2022 by D.K. Njagi Marete, Judge.

Key legal issues

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01

Whether the termination of the grievant's employment was wrongful, unfair and unlawful

Holding

The termination was unlawful - no reason was offered and the grievant was not heard before termination.

Reasoning

The court found no reason for termination was offered, defeating the Respondent's reliance on the contractual notice clause. The grievant was not subjected to any hearing, making the termination blanket and summary, contrary to Sections 41 and 43 of the Employment Act which require substantive and procedural fairness.

p. 4
02

Whether the Claimant is entitled to the relief sought

Holding

Yes - having succeeded on unlawful termination, the Claimant became entitled to relief, and the court awarded twelve months' compensation.

Reasoning

Having found the termination unlawful, the court held the Claimant entitled to relief and awarded compensation equivalent to twelve months' salary computed at Kshs.18,515.15 per month, together with costs of the claim borne by the Respondent. The itemised alternative terminal dues were not separately awarded.

p. 4
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Who bears the costs of the claim

Holding

The Respondent bears the costs of the claim.

Reasoning

The claim succeeded against the Respondent, and the court exercised its discretion on costs in favour of the Claimant, ordering the Respondent to bear the costs of the claim.

p. 5

Legal principles established

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  • A contract of service cannot lawfully be terminated without a sustainable reason even where the contract permits termination by notice.
  • Termination without a hearing violates the procedural fairness requirements of Section 41 of the Employment Act.

Court orders

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  1. 1.Twelve (12) months' compensation for unlawful termination of employment - Kshs.217,813.80 (18,515.15 x 12)
  2. 2.The costs of the claim shall be borne by the Respondent

Authorities

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Legislation

  • Labour Relations ActSection 2 (definition of trade dispute)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(2)
  • Employment Act, 2007Section 35(1)(c)

Cases cited (2)

  • KUCFAW versus Homeafrika Ltd
    Cause No. 955 of 2018
  • KUCFAW versus Kassmart Supermarket
    Cause No. 183 of 2017
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes under the Labour Relations Act

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, "Kenya Union of Comercial, Food and Allied Workers v Magunas Super Stores Limited [2022] KEELRC 553 (KLR)", Case Analysis (2022). Statement of Claim dated 17th January, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/553/eng@2022-03-09

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