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ELRCPartially AllowedCause 27 of 2018 (Consolidated with Cause 28 of 2018)· [2022] KEELRC 1000 (KLR)

Lokitala Kawae & another v Colours Crops Limited [2022] KEELRC 1000 (KLR)

Employment and Labour Relations Court
21 January 2022
1,825 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that firing workers without reasons, notice, or a hearing is unfair and employers must prove they paid terminal dues.

What this practically means

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Executive summary

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Two claimants, security guards employed by the Respondent (the 1st from 1st February 2003 and the 2nd allegedly from 2003, though his contract is dated 2004), claimed employment entitlements and compensation for unfair dismissal after their services were terminated on 18th February 2016. Their suits were consolidated with Cause 27 of 2018 as the lead file. The Respondent contended the claimants were employed on permanent terms from January 2014, that they were paid terminal dues per an award of the Naivasha Sub-County labour office, and that the claims should be dismissed. The claimants admitted referring the dispute to the labour office but maintained that this did not bar proceedings before the court. The 2nd claimant testified for both claimants; the Respondent called its Human Resource manager, who admitted the claimants were not subjected to any disciplinary hearing. The court found the termination letters dated 18/2/2016 gave no reasons and no notice, and that the claimants were terminated without due process as required by section 41 of the Employment Act. It also found no evidence that the Respondent paid the terminal dues it alleged. The court held the terminations unfair and unjustified and awarded each claimant one month's salary in lieu of notice, ten months' salary as compensation for unlawful termination, and salary for 18 days worked in February 2016 - totals of Kshs 153,340 for the 1st claimant and Kshs 145,232 for the 2nd. The claims for leave allowance and gratuity/service pay were not granted. The Respondent was ordered to pay costs plus interest at court rates from the date of judgment.

Key legal issues

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01

Procedural and substantive fairness of the termination

Holding

The termination was unfair and unjustified as no reasons were advanced, no notice was given and the claimants were not heard.

Reasoning

The respondent produced termination letters dated 18/2/2016 which gave no reasons and no notice. The HR manager admitted the claimants were not subjected to any disciplinary hearing. Section 41 of the Employment Act requires the employer to explain the reasons for termination and hear the employee's representations. The court found that this mandatory process was not followed, so the termination failed both procedural and substantive fairness.

p. 3
02

Whether payment of terminal dues pursuant to the labour office process discharges liability

Holding

The respondent failed to prove that the claimants were paid their terminal dues; no evidence of payment or of the labour office award was produced.

Reasoning

The respondent asserted that terminal dues were paid per the Naivasha Sub-County labour office award under sections 47, 48 and 49 of the Employment Act, but produced no award or payment records. The claimants denied receiving the sums. The court held there was no evidence of the alleged payment and proceeded to award the dues it found due.

p. 3
03

Whether the labour office process bars a claim before the ELRC

Holding

Lodging a complaint at the labour office is not a bar to proceedings before this Court.

Reasoning

The claimants admitted having referred the matter to the Naivasha Sub-County labour office but contended, and the court accepted, that this did not bar them from filing a claim before the court, particularly as the respondent failed to produce evidence of the labour office award.

p. 2

Legal principles established

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  • An employer must, before terminating employment, explain the reasons to the employee and hear their representations under section 41 of the Employment Act; failure to do so renders the termination unfair.

Court orders

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  1. 1.1st Claimant awarded Kshs 13,219 being 1 month salary in lieu of notice
  2. 2.1st Claimant awarded Kshs 132,190 being 10 months' salary as compensation for unlawful termination
  3. 3.1st Claimant awarded Kshs 7,931 being salary for 18 days worked in February 2016 (total Kshs 153,340)
  4. 4.2nd Claimant awarded Kshs 12,526 being 1 month salary in lieu of notice
  5. 5.2nd Claimant awarded Kshs 125,200 being 10 months' salary as compensation for unlawful termination
  6. 6.2nd Claimant awarded Kshs 7,512 being salary for 18 days worked in February 2016 (total Kshs 145,232)
  7. 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment Actsections 10, 41, 42(1), 44(3), 44(4), 47(5), 47, 48, 49

Cases cited (3)

  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Emily Muhonja v KenKnit (K) Limited
    [2016] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution / Employment Act (Employment and Labour Relations Court jurisdiction; judgment does not expressly cite the provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lokitala Kawae & another v Colours Crops Limited [2022] KEELRC 1000 (KLR)", Case Analysis (2022). Cause 27 of 2018 (Consolidated with Cause 28 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1000/eng@2022-01-21

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