Rosslyn Khadenyi Madere v Naisula Holdings Limited t/a Naisula School & Cecilia Muchemi (Cause 1036 of 2018) (Employment and Labour) [2022] KEELRC 906 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether termination invoking a contractual notice clause can escape the unfair termination regime
No; termination must be substantively and procedurally fair regardless of the contractual mode invoked
The Respondent argued it merely exercised a contractual right to terminate on three months' notice without giving reasons. The Court held that the Employment Act 2007 heralded a statutory regime of fairness; contract terms bind parties but employment law is for the most part statutory, and Sections 41, 43, 45 and 47(5) apply to any termination howsoever labelled.
Whether the termination was procedurally fair where poor performance was alleged
It was not; the Claimant had a right to be heard before termination on performance allegations
The Respondent adduced no performance management framework, appraisal tool or evidence of any review after the 4th September 2017 letter. The three-month notice period in that letter lapsed and no further evaluation occurred before termination. No show-cause letter or hearing was given, condemning the Claimant unheard contrary to Section 41.
Whether the Respondent justified the reason for termination
It did not; the alleged unsatisfactory performance was not proved
Under Sections 43 and 45(2) the employer bears the burden of proving a valid and fair reason. RW1 confirmed the termination letter gave no reason and no appraisal followed the September 2017 review letter. The Court found it unclear how the decision to terminate was reached and held the termination failed the statutory threshold.
Computation of pay in lieu of notice
Pay in lieu of notice is the full monthly salary including house allowance, not basic pay
The Respondent computed three months' notice pay on basic salary only, excluding house allowance. The Court held housing is a statutory right under Section 31 and that the contract clauses referred to 'pay in lieu of notice' without restricting it to basic pay; the shortfall of Kshs.60,000 was awarded.
Whether the 2nd Respondent was properly joined
No; there was no privity of contract between the Claimant and the 2nd Respondent
The Claimant confirmed on cross-examination that her contract was with the 1st Respondent, Naisula Holdings Limited. Relying on Dunlop v Selfridge, the Court found the 2nd Respondent improperly joined as the Claimant had no contract of employment with it.
Legal principles established
#- It does not matter how a termination was done; where a court finds it unfair or wrongful, Section 49 reliefs apply
- Termination of employment must be substantively and procedurally fair irrespective of the mode of termination invoked by the employer
- Pay in lieu of notice is the employee's full monthly salary including all allowances, and housing is a statutory right
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for Kshs.230,000/- with costs
- 2.Interest at Court rates from the date of judgment till payment in full
- 3.Compensation equivalent to two months' salary (Kshs.170,000/-) under Section 49(1)(c) of the Employment Act
- 4.Three months' pay in lieu of notice computed on full monthly salary, less Kshs.171,337.74 already paid, leaving Kshs.60,000/- outstanding awarded
- 5.Certificate of service to be issued to the Claimant
- 6.2nd Respondent found improperly joined in the proceedings
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (labour dispute first instance)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Onderi v Mini Bakeries (Nairobi) Limited (Cause E716 of 2021) [2024] KEELRC 1708 (KLR)[2024] KEELRC 1708 (KLR)8 Jul 2024
Cite this brief
#Cite this brief
Caselaw, "Rosslyn Khadenyi Madere v Naisula Holdings Limited t/a Naisula School & Cecilia Muchemi (Cause 1036 of 2018) (Employment and Labour) [2022] KEELRC 906 (KLR)", Case Analysis (2022). Cause No 1036 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/906/eng@2022-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.