Victonel Academy v Njuguna (Employment and Labour Relations Appeal E13 of 2021) [2023] KEELRC 137 (KLR)
The bottom line
#A Kenyan court confirmed that employers who underpay workers and skip fair disciplinary procedures will pay the price, even if the employee signed the contract.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the respondent was fair and lawful
The termination was procedurally and substantively unfair: the notice to show cause was dated long after the dismissal, no disciplinary hearing invitation was exhibited, and the reason (negligent driving) was unsubstantiated
The NTSC relied on by the appellant was dated November 30, 2019, nearly three years after the December 7, 2016 termination, and was unsigned and unproved as served. No invitation to a disciplinary hearing was exhibited. The allegation of careless driving was not backed by police records or charges. Section 45(2) of the Employment Act was therefore satisfied that termination was unfair.
Whether the underpayment award was proper despite the claimant's signed agreement to the salary
Yes - the contractual salary was below the statutory minimum, rendering the agreement illegal and unenforceable as to that term
The employment agreement fixed an all-inclusive salary below the minimum wages order, and even shifted the tax obligation to the employee. Applying the illegality doctrine from Five Forty Aviation Ltd v Erwan Lanoe as restating Kenya Airways Ltd v Satwant Singh Flora, the court held the agreement oppressive and illegal and upheld the underpayment award based on the applicable legal notices.
Whether the overtime and other awards were justified
The overtime award was based on the attendance register showing the claimant working past 8 hours a day; the December 2016 salary remained unpaid; the trial court properly exercised its discretion on 12 months' compensation
The court found the overtime awards were grounded on the attendance register, the claimant worked days in December 2016 that were unpaid, and the compensation award was a proper exercise of the trial court's discretion. The appellant filed no submissions to contest these findings, and the court declined to interfere.
Legal principles established
#- A court cannot enforce or advance an illegal contract, including one paying below the statutory minimum wage, even where the employee consented to it
- No person may claim a right or remedy under an illegal transaction, and a court ought not to enforce an illegal contract once the illegality is brought to its notice
- Under section 45(2) of the Employment Act, termination without valid reason and without an opportunity to be heard is unfair
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the Respondent
- On appeal from
- Chief Magistrates Court at Nakuru (CMC ELRC No. 348 of 2019)
- Nakuru CMC ELRC no 348 of 2019
- Jurisdiction invoked
- First appeal to the ELRC against the judgment of the Chief Magistrates Court (the judgment cites its duty to re-evaluate evidence as a first appellate court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Victonel Academy v Njuguna (Employment and Labour Relations Appeal E13 of 2021) [2023] KEELRC 137 (KLR)", Case Analysis (2023). ELRC Appeal from Nakuru CMC ELRC No. 348 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/137/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.