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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 829 (KLR)

Kinyua v JKUAT Nissin Foods Limited (Cause 257 of 2017) [2023] KEELRC 829 (KLR)

Employment and Labour Relations Court
12 April 2023
JGJacob Gakeri
2,946 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that firing an employee for refusing to resign, without a hearing or proof, was unfair and awarded her compensation plus costs.

What this practically means

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Executive summary

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The claimant sued her former employer, JKUAT Nissin Foods Ltd, alleging unfair termination of her employment as a sales representative. She was employed in mid-2015 at Kshs 51,000 per month. After her father's death she took compassionate leave in August 2016; on resuming duty she was pressured to resign, refused, and received a termination letter dated September 9, 2016. She sought notice pay, 12 months' salary, accrued leave, allowances, gratuity and general damages. The respondent, in its defence, contended that the claimant had agreed to resign effective September 1, 2016 but failed to do so, justifying the termination notice. At trial, the respondent adduced no evidence, its counsel having ceased to act for failure to obtain instructions. The court framed two issues: whether the termination was unfair and whether the reliefs were payable. Relying on sections 41, 43, 45 and 47(5) of the Employment Act and authorities including Walter Ogal Anuro and Postal Corporation of Kenya v Andrew K Tanui, the court held that in an undefended suit the claimant's burden remains undiminished, but that the respondent failed on the evidence to justify the termination. The refusal to resign was not a valid and fair reason, and no disciplinary process preceded the dismissal; the termination was neither substantively justifiable nor procedurally fair. On reliefs, the court awarded one month's notice pay, salary for 9 days worked, outstanding leave pay, and compensation equivalent to two months' salary under sections 49(1)(c) and 49(4), reduced for the short tenure and the claimant's apparent contribution through resignation discussions. Airtime/transport allowance, gratuity, general damages and the 12 months' salary claim were declined. Judgment was entered with costs and interest from the date of judgment.

Key legal issues

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01

Whether termination was substantively justified

Holding

It was not; the respondent failed to prove a valid and fair reason for termination

Reasoning

The termination letter stated the reason was the claimant's failure to submit a resignation letter she had 'previously opted' to give. The respondent adduced no evidence. Applying section 43 and the reasonableness test in British Leyland v Swift, the court found the refusal to resign was not shown to be a valid and fair reason on a balance of probabilities.

p. 5
02

Whether termination was procedurally fair under section 41

Holding

It was not; no disciplinary process or hearing was conducted

Reasoning

Section 41 requires explanation of grounds, hearing and consideration of representations before termination. The respondent tendered no evidence of any disciplinary process before the September 9, 2016 dismissal. The four elements articulated in Postal Corporation of Kenya v Andrew K Tanui were absent.

p. 6
03

Quantum of reliefs payable

Holding

Notice pay, 9 days' salary, outstanding leave pay and 2 months' salary as compensation awarded; allowances, gratuity, general damages and 12 months' salary declined

Reasoning

The respondent proved no notice or payment for days worked or leave taken. Compensation was limited to two months under section 49(4), considering the short tenure of about 1 year 2 months, absence of prior warnings, no appeal, and the claimant's contribution to the termination through the resignation discussions.

p. 7

Legal principles established

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  • In an undefended claim the claimant's burden of proof is not reduced; she must still prove employment relationship and unfair termination
  • A valid termination requires both substantive justification and procedural fairness
  • An employee's refusal to resign, without more, is not a valid and fair reason for termination where validity and fairness are not demonstrated

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for one month's salary in lieu of notice
  2. 2.Salary for 9 days worked in September 2016
  3. 3.Pay in lieu of leave for the actual number of days outstanding
  4. 4.Equivalent of 2 months' salary as compensation for unfair termination
  5. 5.Costs of the suit to the claimant
  6. 6.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Employment Act, 2007section 45
  • Employment Act, 2007sections 43 and 43(2)
  • Employment Act, 2007section 46
  • Employment Act, 2007section 41
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 45(2) and 45(2)(c)
  • Employment Act, 2007sections 49(1)(c) and 49(4)
  • Employment and Labour Relations Court Act, 2011section 12(2)
  • Evidence Actsections 107, 108 and 109
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Articles 159(2)(d) and 48

Cases cited (11)

  • Co-operative Bank of Kenya Ltd v Banking, Insurance & Finance Union
    (2017) eKLR
  • Joseph Mwaniki Nganga v United Millers Ltd
    (2022)
  • David Gichana Omuya v Mombasa Maize Millers Ltd
    (2014) eKLR
  • British Leyland UK Ltd v Swift
    (1981) IRL 91
  • Humphrey Munyithya Mutemi v Soluxe International Group of Hotels and Lodges Ltd
    (2020) eKLR
  • Monica Karimi Mutua v Al-Arafat Shopping Centre & another
    (2018) eKLR
  • Nicholus Kipkemoi Korir v Hatari Security Guards Ltd
    (2016) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Naima Khamis v Oxford University Press (EA) Ltd
    (2017) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    (2017) eKLR
  • Postal Corporation of Kenya v Andrew K Tanui
    (2019) eKLR
Jurisdiction invoked
Section 12(2) of the Employment and Labour Relations Court Act, 2011

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, "Kinyua v JKUAT Nissin Foods Limited (Cause 257 of 2017) [2023] KEELRC 829 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/829/eng@2023-04-12

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