PJ Petroleum Equipment Limited v Gathecha (Appeal E105 of 2021) [2023] KEELRC 476 (KLR)
The bottom line
#A Kenyan court confirmed an employer must pay a secretary 12 months' salary for unfairly locking her out, but cut her award by removing unproven claims.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness and fairness of the termination
The termination was unlawful and unfair in violation of sections 36, 41, 43 and 45 of the Employment Act; no proper hearing was accorded the respondent before she was hounded out of the office on 6th December 2018, and the later show-cause and dismissal letters were overtaken by events.
The employer directed staff to resign by a letter dated 6th December 2018; the respondent refused and was thereafter barred from the office. Although the appellant alleged a disciplinary hearing and criminal charges over a lost file, no minutes were produced and no criminal charges were ever preferred. The subsequent notice of 1st February 2019 and dismissal of 11th February 2019 were overtaken by events since the respondent had already been excluded from the workplace.
Compensation under Section 49 of the Employment Act
The award of 12 months' salary compensation (Kshs 420,000) was upheld; the respondent did not contribute to the termination, had a clean record of nine years and was not paid terminal benefits.
The court found no justification to interfere with the trial court's exercise of discretion under Section 49(1) and (4), having regard to the respondent's clean service record, her desire to remain in employment, absence of contribution to the termination and non-payment of terminal benefits.
Proof of specific heads of terminal benefits
Claims for salary arrears, gratuity, leave days and service pay failed for want of proof, limitation or statutory bar, and those awards were set aside.
The court examined each head separately: salary arrears were unproved and time-barred; gratuity was barred by NSSF contributions; the blanket leave claim was discredited by evidence of leave taken and payment in lieu; service pay lacked documentary basis in a letter of appointment. Only notice pay and 8 days' December 2018 salary were confirmed.
Legal principles established
#- On a first appeal the court re-evaluates the evidence and determines whether the trial court's conclusions should stand, giving reasons either way.
- A trial court must consider each head of relief separately before awarding it.
- Where NSSF contributions are made, gratuity is not separately payable under Section 35(5) of the Employment Act.
- Employment claims are subject to the three-year limitation period under Section 90 of the Employment Act.
Court orders
#- 1.Judgment of the trial court set aside and substituted with an award in favour of the respondent
- 2.Appellant to pay respondent the equivalent of 12 months' salary as compensation for unlawful and unfair dismissal (Kshs 420,000)
- 3.Appellant to pay respondent Kshs 35,000 in lieu of one month notice
- 4.Appellant to provide Certificate of Service to respondent within 30 days of the judgment
- 5.Award payable with interest at court rates from the date of judgment in the trial court till payment in full
- 6.Appellant to pay half (1/2) the costs before the trial court and this court
- On appeal from
- Magistrates' Court
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the trial magistrate's decision ( Employment and Labour Relations Court Act / appeal from the magistrate's court); not expressly cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PJ Petroleum Equipment Limited v Gathecha (Appeal E105 of 2021) [2023] KEELRC 476 (KLR)", Case Analysis (2023). Appeal No E105 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/476/eng@2023-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.