Apiyo v J.K Kibicho & Company Advocates (Cause 517 of 2022) [2022] KEELRC 1651 (KLR)
The bottom line
#A Kenyan court ruled a law firm's secretary was unfairly fired because her employer could not prove why, or follow fair procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent had a valid and fair reason for the summary dismissal
The respondent failed to prove a valid and fair reason under section 45 of the Employment Act
The alleged reasons - failure to return from leave and refusal to accept service of a notice to show cause - were not substantiated. There was no termination letter, no affidavit of service, and the leave issue was never raised for months after the claimant resumed work. The notice to show cause lacked probative value and the reasons were denied by the claimant.
Whether the dismissal accorded with fair procedure under section 41 of the Employment Act
The dismissal was procedurally flawed; the claimant was not afforded a hearing in the presence of a fellow worker or representative
Although RW1 asserted that a disciplinary process took place, no notice of invitation, record of proceedings or minutes were tendered. The claimant was not given a written notice to show cause or an opportunity to defend herself against the allegations. The summary dismissal of November 30, 2015 therefore violated section 41 of the Employment Act, 2007.
What remedies flow from the unlawful and wrongful dismissal
Compensation of 8 months' salary (Kshs 350,000/=), one month's salary in lieu of notice (Kshs 43,750/=), interest, and costs
Having found the dismissal irregular, the court exercised its discretion under section 49(1)(c) taking into account 13 years of service, the absence of previous warnings and the absence of contribution to the dismissal. No notice preceded the termination, so one month's salary in lieu of notice was also awarded, with interest and costs to the claimant.
Legal principles established
#- For a termination to pass the fairness test it must be shown that there was both substantive justification and procedural fairness
- The burden of proving unfair termination rests on the employee while the burden of justifying the grounds for termination rests on the employer
- Where there is a fair reason but the employer uses a procedure not conforming to statute, the termination is still unfair; wrongful dismissal involves breach of the employment contract
Court orders
#- 1.Declaration that the summary dismissal of the claimant was unlawful and wrongful
- 2.Compensation of the equivalent of 8 months' salary under section 49(1)(c), amounting to Kshs 350,000/=.
- 3.One month's salary in lieu of notice amounting to Kshs 43,750/=.
- 4.Interest at court rates from the date of judgment till full payment on the total award of Kshs 393,750/=.
- 5.Costs of the suit awarded to the claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance memorandum of claim; no constitutional provision cited for jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Apiyo v J.K Kibicho & Company Advocates (Cause 517 of 2022) [2022] KEELRC 1651 (KLR)", Case Analysis (2022). Cause No 517 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1651/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.