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ELRCPartially AllowedCause No 439 of 2015· [2023] KEELRC 694 (KLR)

Mucheru v Gikoe Mung’aria Investments Co. Ltd (Cause 439 of 2015) [2023] KEELRC 694 (KLR)

Employment and Labour Relations Court
23 March 2023
LNLINNET NDOLO
872 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a caretaker 12 months' salary because his employer fired him without a hearing, but rejected claims he couldn't prove with records.

What this practically means

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Executive summary

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This first-instance judgment of the Employment and Labour Relations Court at Nairobi, delivered virtually by Linnet Ndolo J on 23 March 2023, determined an undefended claim of unfair termination. The matter had originally been heard ex parte by Abuodha J, who entered judgment for the Claimant on 15 April 2016 in the sum of Kshs 164,355. That ex parte judgment was set aside by Makau J on 5 November 2020, allowing the Respondent to defend. Peter Kimani Waraho and New Mung’aria Investments Co. Ltd then purported to file a response describing themselves as 2nd and 3rd Respondents, but the court found they had never been admitted as parties and struck out their response, the witness statement of Peter Kimani Waraho and the submissions filed on their behalf. The claim was therefore undefended. The Claimant, employed as a caretaker from January 2003 until his termination on 8 January 2014, alleged unlawful and unfair termination and claimed notice pay, January 2014 salary, service pay, leave pay, rest days, twelve months' compensation and underpayment. The court found the termination letter showed the Claimant's employment was ended without regard to the procedural fairness requirements of Section 41 of the Employment Act and that no valid reason under Section 43 was proved. The termination was held substantively and procedurally unfair. The court awarded twelve months' salary in compensation (Kshs 243,396) and one month's salary in lieu of notice (Kshs 20,283), totalling Kshs 263,679, with interest at court rates from the date of judgment. The remaining heads of claim were disallowed as unproved. Costs were awarded to the Claimant.

Key legal issues

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01

Whether the termination of the Claimant's employment was unlawful and unfair

Holding

Termination was substantively and procedurally unfair; no valid reason was proved and Section 41 procedure was not followed

Reasoning

The termination letter dated 8 January 2014 set out allegations of absconding, failure to deposit rent and failure to issue receipts, but the Claimant was not accorded any hearing before termination. The court found the Section 41 procedural fairness requirements were disregarded and the allegations were not proved at the shop floor, so no valid reason under Section 43 existed.

p. 3
02

Whether the Claimant is entitled to the remedies sought

Holding

Awarded 12 months' salary in compensation and one month's salary in lieu of notice; other heads of claim not proved and disallowed

Reasoning

Compensation of twelve months was granted taking into account the Claimant's long service and the Respondent's unlawful conduct. Notice pay was awarded. Claims for January 2014 salary, service pay, leave pay, rest days and underpayment failed for want of proof.

p. 3

Legal principles established

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  • Termination without adherence to the procedural fairness requirements of Section 41 of the Employment Act is unfair, and unproved allegations do not constitute a valid reason under Section 43.

Court orders

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  1. 1.The purported response of Peter Kimani Waraho and New Mung’aria Investments Co. Ltd is struck out as incompetent
  2. 2.The witness statement of Peter Kimani Waraho and submissions filed on behalf of the purported 2nd and 3rd Respondents are struck out
  3. 3.Judgment entered in favour of the Claimant: Kshs 243,396 (12 months' salary in compensation) and Kshs 20,283 (1 month's salary in lieu of notice), total Kshs 263,679
  4. 4.Interest at court rates from the date of judgment until payment in full
  5. 5.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (court not explicitly stated in the judgment)

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, "Mucheru v Gikoe Mung’aria Investments Co. Ltd (Cause 439 of 2015) [2023] KEELRC 694 (KLR)", Case Analysis (2023). Cause No 439 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/694/eng@2023-03-23

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