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ELRCPartially AllowedCause No 1677 of 2016· [2022] KEELRC 1656 (KLR)

Ngui v Ireri Ndigwa t/a Links Place Pub and Restaurant (Cause 1677 of 2016) [2022] KEELRC 1656 (KLR)

Employment and Labour Relations Court
6 June 2022
JGJacob Gakeri
2,512 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a chef Kshs.45,933 after finding his dismissal unfair because his employer gave no reason, notice, or hearing.

What this practically means

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Executive summary

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The Claimant, employed in October 2014 as a chef on a monthly salary of Kshs.13,000, sued for unfair termination and terminal dues after an electric deep frier he was using malfunctioned on 16th February 2016, spilling hot cooking oil on him. He alleged that the Supervisor, Josephine, told him the same day not to report back to work. The Respondent denied liability, asserting that protective gear had been provided, that the Claimant operated the cooker negligently, and that he absconded duty. Neither party filed submissions. The Court framed two issues: whether the termination was unfair and whether the Claimant was entitled to the reliefs sought. Relying on Pius Machafu Isindu v Lavington Security Guards Limited, the Court found the dismissal breached sections 41, 43, 45 and 47(5) of the Employment Act, 2007, there being no notice to show cause, no termination letter and no reason given. The evidence of CW2, the former Manager, corroborated that the supervisor had no authority to dismiss, while the Director and Manager each blamed the other, and the Respondent failed to call the supervisor. Judgment was entered for the Claimant: one month's salary in lieu of notice (Kshs.13,000), salary for sixteen days worked in February 2016 (Kshs.6,933), and compensation equivalent to two months' salary (Kshs.26,000), totalling Kshs.45,933, plus a certificate of service within 30 days, costs and interest. Severance pay and punitive damages were declined for want of evidentiary foundation.

Key legal issues

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01

Whether the termination of the Claimant's employment was unfair

Holding

Termination was unfair for want of substantive justification and procedural fairness

Reasoning

The Claimant was dismissed without a notice to show cause, termination letter or any reason, contrary to sections 41, 43, 45 and 47(5) of the Employment Act, 2007. The Manager disclaimed responsibility, blaming the Director, while the Director inculpated the Manager. The Respondent did not call the supervisor Josephine, who allegedly conveyed the dismissal, to confirm or contradict the Claimant's evidence.

p. 5
02

Entitlement to compensation for unlawful termination

Holding

Awarded the equivalent of two months' salary under Section 49(1)(c) of the Employment Act

Reasoning

The Court considered the short duration of employment (one year and 3½ months), the Claimant's willingness to continue working evidenced by his return after recovery, and his non-contribution to the termination. It fixed compensation at two months' salary, Kshs.26,000.

p. 6

Legal principles established

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  • The employer bears the statutory burden of proving valid reasons for termination and compliance with the mandatory notification and hearing process under sections 41, 43, 45 and 47(5) of the Employment Act

Court orders

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  1. 1.One month's salary in lieu of notice Kshs.13,000
  2. 2.Salary for the days worked in February 2016 Kshs.6,933
  3. 3.Equivalent of two months' salary Kshs.26,000 (total award Kshs.45,933)
  4. 4.Certificate of service to issue within 30 days of the judgment
  5. 5.Costs of the claim to the Claimant
  6. 6.Interest at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007Sections 41, 43, 45, 47(5), 49(1)(c), 49(4), 40(1)(d), 51
  • Constitution of Kenya, 2010Articles 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (1)

  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007); Article 159(2)(d) and Article 48 of the Constitution cited regarding virtual delivery

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ngui v Ireri Ndigwa t/a Links Place Pub and Restaurant (Cause 1677 of 2016) [2022] KEELRC 1656 (KLR)", Case Analysis (2022). Cause No 1677 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1656/eng@2022-06-06

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