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ELRCPartially AllowedStatement of Claim dated 11th November 2019· [2023] KEELRC 304 (KLR)

Nyangena v Hi-Tech Inks and Coating Limited (Cause 851 of 2019) [2023] KEELRC 304 (KLR)

Employment and Labour Relations Court
9 February 2023
OKOcharo Kebira
3,232 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an accountant's firing unfair because the employer skipped the mandatory hearing process, awarding over Ksh 1 million in damages and costs.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from June 2018 as an accountant on a gross monthly salary of Ksh 134,995, sued for unlawful and unfair termination effected on 24th September 2019, seeking a declaration, Ksh 1,994,435 in particularized dues, a certificate of service, costs and interest. The Respondent entered appearance and filed a response but neither its counsel nor witness attended the hearing, so the claim proceeded undefended. The court framed three issues: whether the termination was fair and lawful, whether the reliefs were payable, and costs. Holding that fairness has procedural and substantive limbs, the court found the Respondent had discharged neither burden: it adduced no evidence of compliance with the mandatory section 41 procedure, and the Claimant's unchallenged evidence was that he was never heard; likewise no proof of valid and fair reasons under sections 43 and 45 was tendered, the termination letter's grounds being too general. The Claimant, having discharged his burden under section 47(5), established unfair termination. On remedies, the court awarded one month's net salary in lieu of notice (Ksh 100,000), six months' gross salary as compensation under section 49(1)(c) (Ksh 815,970), Ksh 58,929 for 13 unutilized leave days, and Ksh 64,529 for days worked in September 2019 after deducting a Ksh 40,000 advance, plus interest, costs, and a certificate of service under section 51 within 30 days. Judgment was entered for the Claimant; the Respondent was condemned to pay costs. The judgment was delivered virtually under the COVID-19 directions of the Chief Justice.

Key legal issues

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01

Whether the termination of the Claimant's employment was procedurally fair

Holding

The termination was procedurally unfair because the Respondent, which bore the burden, adduced no evidence of compliance with section 41, and the Claimant's unchallenged evidence was that he was never heard

Reasoning

Section 41 of the Employment Act prescribes a mandatory procedure: the employer must explain the reasons for contemplated termination and hear the employee's representations. The duty to prove compliance rests on the employer. The Respondent neither appeared at the hearing nor called a witness. The Claimant's testimony that he was denied an opportunity to make representations was unchallenged. The court therefore concluded, under section 45(2)(c), that the termination was procedurally unfair.

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02

Whether the termination was substantively fair and lawful

Holding

The termination was substantively unfair - the Respondent failed to prove valid and fair reasons, and the grounds in the termination letter were too general

Reasoning

Section 43 obliges the employer to prove the reasons for termination, and section 45(2) requires that those reasons be valid and fair. The Respondent adduced no evidence. The termination letter's stated grounds were too general to constitute a valid and fair ground. Considering section 44, the dismissal was summary, and there was no evidence of fundamental breach justifying it. The Claimant discharged his burden under section 47(5).

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What remedies flow from the unfair termination

Holding

The Claimant was awarded one month's net salary in lieu of notice, six months' gross salary as compensation, unutilized leave pay, salary for days worked in September 2019, and a certificate of service

Reasoning

Exercising discretion under section 49(1)(c), the court considered that the employment was terminated without due procedure, without a valid and fair reason, and with no contributory fault by the Claimant, and awarded six months' gross salary. Notice pay was computed on net salary given statutory deductions under section 19. Leave days (13 unutilized) and 24 days worked in September 2019 were quantified, and section 51 mandated the certificate of service.

p. 6

Legal principles established

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  • The procedure under section 41 of the Employment Act is mandatory and any deviation renders a termination unfair even if there was substantive justification
  • The burden of proving that the section 41 procedure was adhered to, and that the reasons for termination were valid and fair, lies on the employer
  • Fairness in termination is assessed on two aspects - procedural and substantive fairness
  • A legal burden can only be discharged by adducing sufficient evidence to prove the required facts to the requisite standard

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was both procedurally and substantively unfair and unlawful
  2. 2.One month's salary in lieu of notice of Ksh 100,000
  3. 3.Damages for unfair and unlawful termination of Ksh 815,970 (6 months' gross salary)
  4. 4.Payment for unutilized leave days of Ksh 58,929
  5. 5.Payment for days worked in September 2019 of Ksh 64,529
  6. 6.Interest on the sums awarded from the date of judgment till full payment
  7. 7.Costs of the suit to the Claimant
  8. 8.The Respondent to issue a Certificate of Service within 30 days of the judgment

Authorities

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Legislation

  • Employment Actsection 43(1)
  • Employment Actsection 41
  • Employment Actsection 49(1)(c)
  • Employment Actsection 51
  • Employment Actsection 45(2)
  • Employment Actsection 44
  • Employment Actsection 47(5)
  • Employment Actsection 19
  • Employment Actsection 42(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (1)

  • Kenya Plantation & Agricultural Workers Union vs Del Monte Kenya Ltd
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Nyangena v Hi-Tech Inks and Coating Limited (Cause 851 of 2019) [2023] KEELRC 304 (KLR)", Case Analysis (2023). Statement of Claim dated 11th November 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/304/eng@2023-02-09

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