Kibui v Camusat Kenya Limited (Cause 2358 of 2017) [2023] KEELRC 11 (KLR)
The bottom line
#A Kenyan court awarded a dismissed finance manager KES 1.8 million because her employer couldn't prove why she was fired or let her defend herself.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent proved a valid and fair reason for terminating the Claimant's employment
The Respondent failed to establish a verifiable and valid reason; there was no concrete evidence that the Claimant co-ordinated or authored the offending letters to the Immigration Department, so the termination was unfair within section 45.
Section 43 required the employer to prove the genuine and valid reasons for termination. The only link to the alleged misconduct was the testimony of Gatechew, who was never called to testify or furnish a statement. The colleagues mentioned as participants were not asked to write statements or testify. The court drew an adverse inference from the failure to call crucial witnesses, as in Philip Amwayi Wokinda, and held the employer failed to discharge its burden.
Whether the termination procedure complied with section 41 of the Employment Act
The procedure was unprocedural; the Claimant was not given an ample opportunity to defend herself and to call a witness of her choice.
Section 41(1) obliges an employer to explain the reason for contemplated termination in a language the employee understands and to allow the presence of a fellow employee or shop floor union representative of the employee's choice. The Claimant testified she was not allowed to call a witness and all attendees at the hearing were appointed by Ms. Meijide, the person she accused. The court held the right to be heard before termination, with a witness, is sacrosanct.
Whether the Claimant was entitled to the reliefs sought
Compensation of 8 months' salary and one month's notice pay were awarded; house allowance, severance/service pay and discrimination damages were declined.
The court exercised its discretion under section 49 of the Employment Act to award the equivalent of 8 months' gross salary as compensation for the unfair termination, plus one month's salary in lieu of notice. House allowance was refused because the salary was gross pay; service pay was refused because NSSF dues were remitted; no separate damages for discrimination were awarded.
Legal principles established
#- The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer.
- An employer must prove the reason for termination; failure to do so renders the termination unfair under section 45.
- An employer is obligated to give a verifiable and concrete reason to support termination of an employee.
- It is a sacrosanct right of an employee to be heard before termination and in the presence of a witness of their choice, per section 41 of the Employment Act.
- Failure to follow the mandatory procedure in section 41 of the Employment Act renders the termination wrongful due to unfair procedure.
Court orders
#- 1.Award of general damages equivalent to 8 months' salary totalling Kshs.1,600,000/= for unfair, unlawful and unprocedural termination
- 2.Award of one month salary in lieu of notice being Kshs.200,000/=
- 3.Total award to the Claimant of Kshs.1,800,000/=
- 4.Costs awarded to the Claimant
- 5.Interest at court rates from the date of judgment until full payment
- 6.Respondent to issue the Claimant with a certificate of service within 14 days from the date of judgment
- 7.Claim for house allowance declined
- 8.Claim for severance/service pay declined
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court over a claim for unlawful and unfair termination of employment under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibui v Camusat Kenya Limited (Cause 2358 of 2017) [2023] KEELRC 11 (KLR)", Case Analysis (2023). Nairobi ELRC Cause No. 2358 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/11/eng@2023-01-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.