Joab v Store Sixty Six Limited (Cause 1951 of 2017) [2023] KEELRC 365 (KLR)
The bottom line
#A Kenyan employer who fires an employee without evidence and a fair hearing must pay damages, even where theft is alleged.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
Termination was unfair as the respondent failed to discharge its evidential burden under sections 43(1) and 45(2)(a) and (b)
The employer had the heaviest responsibility of proving the reasons for termination on a balance of probabilities. It adduced no evidence, produced no termination letter, and did not avail the audit and investigation report apportioning culpability. The allegations of stealing by servant therefore remained unsubstantiated, rendering the termination unfair.
Procedural fairness of termination
Termination was unlawful under section 45(2)(c) as the section 41 process was not followed
There was no evidence of a notice detailing the allegations to the claimant, no invitation to defend herself, and no proof that a hearing was conducted. The assertions of a hearing in the Memorandum of Response were unsupported by evidence, so the process contemplated under section 41 was not subjected to the claimant.
Entitlement to reliefs
Salary, notice pay, compensatory damages, leave and service pay awarded; commissions and public holiday pay denied for want of proof
Compensatory damages of two months' gross salary factored in the length of employment and the employer's failure to prove reasons or fair process. Notice pay followed clause 20 of the contract. Leave was awarded since the employer did not avail leave records under section 74(1)(f), and service pay under section 35(5). Specific claims for commissions and public holidays required proof by the claimant.
Legal principles established
#- An employer bears the burden of proving both substantive justification and procedural fairness for termination under sections 41, 43 and 45 of the Employment Act, dischargeable only by evidence
- An employee claiming unpaid public holidays or overtime bears the burden of establishing such days worked and how the figure claimed was arrived at
Court orders
#- 1.Salary for the month of September, 2014 being Kshs 120,000.00
- 2.Two month's salary in lieu of notice being the sum of Kshs 240,000.00
- 3.Compensatory damages in the sum of Kshs 240,000.00, being equivalent to 2 months of her gross salary
- 4.Leave for one year being the sum of Kshs 84,000.00
- 5.Service pay for one year being Kshs 60,000.00
- 6.Total award of Kshs 744,000.00 with interest at court rates from the date of Judgment until payment in full
- 7.The claimant shall have the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joab v Store Sixty Six Limited (Cause 1951 of 2017) [2023] KEELRC 365 (KLR)", Case Analysis (2023). Employment Cause (Claim filed against respondent, Criminal Case No. 4915 of 2014 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/365/eng@2023-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.