Menza Alfan Mwangadu & 9 others v Buzeki Enterprise Ltd [2022] KEELRC 854 (KLR)
The bottom line
#A Kenyan court awarded ten workers nearly KSh 2.9 million after their employer fired them without notice, a valid reason, or a hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimants' employment could be terminated without notice
No. Having worked continuously for almost two years, the Claimants' contracts were terminable only by twenty-eight days' written notice under Section 35(1)(c) of the Employment Act.
The Claimants' testimony that they worked continuously from early January 2015 to 30th November 2016 was unchallenged, as the Respondent did not attend the hearing. The Respondent's own pleadings admitted employing the Claimants during 2015 and terminating them on 30th November 2016. Parties are bound by their pleadings. On that duration, Section 35(1)(c) required twenty-eight days' written notice, so termination without notice was impermissible.
Whether termination of the Claimants' employment was unfair
Yes; termination failed both the procedural and substantive tests, being unfair.
Section 41 of the Employment Act requires, in mandatory terms, that an employer explain the reasons for termination to the employee and hear representations before termination. The employer did not comply with this procedure and did not demonstrate a valid reason for termination. Section 45 places the burden on the employer to prove valid and fair reason and fair procedure. Both tests failed, entitling the Claimants to compensation, consistent with National Bank of Kenya v Samuel Nguru Mutonya.
Whether the Claimants are entitled to the reliefs sought
Yes; the claims were proved on a balance of probability, including underpayment contrary to the 2013 and 2015 Wage Regulation Orders.
The Claimants proved on a balance of probability that they were underpaid during employment contrary to the 2013 and 2015 Wage Regulation Orders, and that their termination was unfair. The court awarded each Claimant notice pay, accumulated leave pay, underpayment, service pay and six months' salary as compensation for unfair termination, as pleaded, prayed and proved, totaling Ksh 2,831,464.20, plus costs, interest and certificates of service.
Legal principles established
#- Failure to comply with the mandatory hearing procedure in Section 41 of the Employment Act renders a termination of employment unfair and entitles the employee to compensation.
- An employer must prove both a valid and fair reason for termination and that a fair procedure was followed; failure on either renders termination unfair.
- Employees continuously employed for a period not less than thirteen months immediately before termination have the right to complain of unfair termination under Section 45(3) of the Employment Act.
Court orders
#- 1.Judgment entered against the Respondent in favour of the Claimants for a total sum of Ksh 2,831,464.20, comprising awards per Claimant for one month's salary in lieu of notice, accumulated leave days, underpayment, service pay and six months' salary as compensation for unfair termination
- 2.Claimants awarded costs of the suit and interest at court rates from the date of judgment until payment in full
- 3.Respondent directed to issue each Claimant with a Certificate of Service pursuant to Section 51(1) of the Employment Act within forty-five (45) days of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under employment and labour relations (Employment Act claims); no specific constitutional/statutory provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Menza Alfan Mwangadu & 9 others v Buzeki Enterprise Ltd [2022] KEELRC 854 (KLR)", Case Analysis (2022). Cause No 139 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/854/eng@2022-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.