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ELRCPartially AllowedELRC Cause No. 16 of 2017· [2023] KEELRC 418 (KLR)

Kizito v Young Women Christian Association of Kenya (Cause 1607 of 2017) [2023] KEELRC 418 (KLR)

Employment and Labour Relations Court
2 February 2023
3,793 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court awarded a former union official six months' salary because her employer fired her unfairly and its key decision-maker never appeared to explain why.

What this practically means

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Executive summary

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The claimant, formerly National General Secretary of the respondent organization, sued for declarations that her May 2017 termination was unfair, unlawful and discriminatory, together with Kshs 19,093,028, a Certificate of Service, costs and interest. She had been sent on compulsory leave in April 2017, subjected to a disciplinary process by a Board committee, and terminated for insubordination. The court framed three issues: validity of reason and fairness of procedure, whether the suit was compromised by an out-of-court settlement, and entitlement to reliefs. It found no comprehensive full and final settlement; only notice pay, five days' salary for May 2017 and accrued leave had been paid, and a Certificate of Service issued, so those items were spent. Travel, telephone and duty allowance claims failed for lack of evidence. On the termination, the claimant's credible, uncontradicted account of a chairperson-orchestrated, stage-managed process prevailed; the chairperson, who recorded a witness statement, was not called to testify, and the HR Manager's evidence was largely hearsay. The court held the termination was without valid reason and procedurally unfair, violating the respondent's Human Resource Manual, Constitution and sections 41, 43 and 45 of the Employment Act. The discrimination claim was not proved for a separate damages award. Relying on Court of Appeal authority, the court awarded six months' salary (Kshs 2,370,000) as compensation and Kshs 197,500 in unpaid half salary for April 2017, with interest at court rates from judgment and costs of the suit.

Key legal issues

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01

Whether termination was for a valid reason and by fair procedure

Holding

Termination was not for a valid reason and procedure was unfair; the respondent violated its Human Resource Manual, Constitution and sections 41, 43 and 45 of the Employment Act

Reasoning

The claimant testified credibly of systemic undermining and a stage-managed disciplinary process by the National Chairperson, who was not called to testify. The HR Manager's evidence was largely hearsay and could not refute the claimant's account. On a balance of probability the court found no valid reason and no fair procedure, entitling the claimant to compensation under section 49(1)(c) and 4.

p. 7
02

Whether the suit was compromised by an out-of-court settlement

Holding

Only the specific terminal dues items were settled; the suit was not fully compromised

Reasoning

There was no comprehensive agreement executed in full and final settlement. Payments covered notice pay, 5 days' salary for May 2017 and accrued leave; the Certificate of Service was also issued. Those items are spent, but the remaining heads of claim remained live for determination.

p. 6
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Quantum of compensation for unfair termination

Holding

Six months' salary (Kshs 2,370,000) awarded, plus unpaid half salary for April 2017 (Kshs 197,500)

Reasoning

Guided by Court of Appeal authority upholding awards of 12 months' salary, the court considered the claimant's about eight years of service, the unserved balance of a five-year renewable contract, the damage to her career and dignity, and that she did not materially contribute to her ouster, settling on six months' salary as appropriate compensation.

p. 8

Legal principles established

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  • A partial settlement of specific terminal dues does not compromise the entire suit unless expressly in full and final settlement
  • Failure to call a key witness (the Chairperson who orchestrated the termination) weakens the employer's case; uncontradicted credible testimony may prove unfair termination

Court orders

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  1. 1.Kshs 2,370,000 in compensation for unlawful and unfair termination
  2. 2.Kshs 197,500 being unpaid half salary for the month of April, 2017
  3. 3.Interest at court rates from date of judgment till payment in full
  4. 4.Costs of the suit

Authorities

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Legislation

  • Employment Actsections 41, 43, 45
  • Employment Actsections 49(1)(c) and 49(4)

Cases cited (3)

  • Peter Otabong Ekisa v County Government of Busia
    [2017] eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] eKLR
  • Kenya Broadcasting Corporation v Geoffrey Wakio
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 45, 49) over unfair termination claims

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, "Kizito v Young Women Christian Association of Kenya (Cause 1607 of 2017) [2023] KEELRC 418 (KLR)", Case Analysis (2023). ELRC Cause No. 16 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/418/eng@2023-02-02

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