Sementaina Karimi Njiru v Wallance Kamau & another [2022] KEELRC 698 (KLR)
The bottom line
#A Kenyan court ruled an employer's dismissal unfair simply because it skipped a proper hearing, but only awarded two months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the employer had a valid and fair reason for the summary dismissal
The employer proved a valid, fair and justifiable reason under Section 44(4)(c) - the Claimant wilfully neglected her duty to protect and monitor a child under her care who was sexually assaulted
The Court found it not in dispute that the Claimant was in charge of the Grace Opiyo family and was conversant with the child protection policy. The child was molested at home during the holiday yet the violation went unreported until she reported to school. The Claimant ought to have known the family better and rendered a better account. On a balance of probabilities the employer established a valid reason for dismissal under Section 44(4)(c).
Whether the dismissal complied with fair procedure under Section 41 of the Employment Act
Procedurally defective - no notice to show cause, no disciplinary hearing, no minutes or records were produced
Section 41 mandates that an employer explain reasons and hear representations before termination or summary dismissal. The Court of Appeal in Standard Group v Jenny Luesby confirmed this is a mandatory process. It was not disputed that the Claimant was not taken through any disciplinary process, and the Respondent led no evidence of one. The dismissal was therefore procedurally unfair.
Whether the Claimant was entitled to salary for the unexpired term of her three-year contract
Declined - anticipatory earnings are not awardable, and the contract contained a one-month notice exit clause
The Court of Appeal in D.K. Njagi Marete v Teachers Service Commission, adopting Elizabeth Wakanyi Kibe v Telkom Kenya, held claims for anticipatory benefits are not anchored in law. The contract also allowed either party to terminate on one month's notice or salary in lieu. George Njogu Ndungu v Keroche Breweries was distinguished as it involved a disguised redundancy.
What compensation is appropriate under Section 49 of the Employment Act
Equivalent of two months' salary, considering about 2½ years' service and the Claimant's substantial contribution to the dismissal
Section 49(4) parameters apply. The Claimant served about 2½ years under successive fixed term contracts and wished to continue, but substantially contributed to the summary dismissal by neglecting her child protection duties. These factors justified a modest award of two months' salary rather than the 12 months claimed.
Legal principles established
#- For a termination to pass the fairness test there must be both substantive justification and a fair procedure
- Non-compliance with the procedural requirements of Section 41 of the Employment Act renders a summary dismissal procedurally defective and unfair
- Claims for anticipatory earnings for the unexpired period of a contract are not anchored in law
Court orders
#- 1.Declaration that the Claimant's termination of employment by the Respondent is unlawful (the Court having so found)
- 2.Equivalent of two (2) months' salary as compensation for unfair termination
- 3.Costs of this suit to the Claimant
- 4.Interest at Court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Constitution Article 41 fair labour practices)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sementaina Karimi Njiru v Wallance Kamau & another [2022] KEELRC 698 (KLR)", Case Analysis (2022). Not stated in the judgment (Employment and Labour Relations Court cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/698/eng@2022-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.