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ELRCPartially AllowedCause No 990 of 2018· [2023] KEELRC 871 (KLR)

Kimanzi v United Paints Limited (Cause 990 of 2018) [2023] KEELRC 871 (KLR)

Employment and Labour Relations Court
14 April 2023
3,874 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, formerly an Admin in the respondent's dispatch, transport and logistics unit, sued for unfair termination arising from a February 13, 2018 physical and verbal altercation with the respondent's driver, Mr Wilson Thuku, claiming accrued leave, compensatory damages, unpaid house allowance and salary underpayment totalling Kshs 750,432.88. The respondent maintained that the claimant was lawfully terminated for gross misconduct - assaulting Mr Thuku - after a disciplinary hearing on February 14, 2018. The court framed three issues: substantive fairness, procedural fairness and entitlement to reliefs. On substantive fairness, the court found the respondent failed to discharge its burden under sections 43 and 45 of the Employment Act because Mr Thuku, the complainant and star witness, neither testified nor gave a statement, rendering the managing director's evidence hearsay and the accusations uncorroborated. On procedure, the court found no formal notice under section 41 and noted the hearing occurred within 24 hours of the incident, applying the Court of Appeal's guidance in Nebert Mandala Ombajo v ICPAK, and held the termination unlawful. The claimant disowned the contract of employment as a forgery but led no proof, so the contract - showing a consolidated salary - was relied upon to defeat the house allowance claim, applying Demutila Nanyama Pururmu and Grain Pro Kenya. Underpayment was partly established against statutory minimum wages, and accrued leave pay was limited to 18 months under section 28(4). Judgment was entered for the claimant for Kshs 147,430.95 with interest, costs, and a certificate of service.

Key legal issues

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01

Substantive fairness of the termination

Holding

The respondent failed to prove a valid and fair reason because the driver, Mr Thuku, who was the complainant and star witness, was not called to testify, rendering the MD's evidence hearsay

Reasoning

The altercation was a matter of one word against the other. The employer bore the burden under sections 43 and 45(2)(a) and (b) of the Employment Act to prove the reason on a balance of probability. Since Mr Thuku neither testified nor gave a statement, the accusations against the claimant were uncorroborated and the court could not find the claimant largely to blame for the incident.

p. 4
02

Procedural fairness of the termination

Holding

The process violated section 41 of the Employment Act; there was no formal notice of a disciplinary hearing and the hearing occurred within 24 hours of the alleged misconduct, leaving no time to prepare

Reasoning

Section 41 requires notification of the allegations and an opportunity to be heard with a representative. The record did not show the claimant was notified that the February 14, 2018 meeting was a disciplinary hearing or that his actions could lead to termination. Applying Nebert Mandala Ombajo v ICPAK, the urgency and lack of formal notice rendered the process unfair and the termination unlawful.

p. 5
03

Authenticity of the contract of employment and house allowance claim

Holding

The claimant failed to prove his allegation of forgery and the consolidated salary clause defeated the house allowance claim

Reasoning

A party alleging forgery must prove it; the claimant disowned the contract only at the hearing and led no evidence on the signature's authenticity, and the court has no expertise in examining handwriting. The contract showed a consolidated salary, and following Grain Pro Kenya Inc Ltd v Andrew Waithaka Kiragu, the payslip is not the reference document for interpreting contractual terms.

p. 6
04

Underpayment claim

Holding

Partly allowed; underpayment established for May 2015 to February 2018 by comparison with statutory minimum consolidated wages under the relevant legal notices

Reasoning

The court compared the claimant's earnings against statutory minimum wages plus 15% house allowance under legal notices No 116 of 2015 and No 111 of 2017, finding shortfalls of Kshs 278.40 monthly in 2016 and a greater shortfall from May 2017. The 2013-2015 period failed because the claimant did not prove his earnings then.

p. 7
05

Accrued leave pay

Holding

Awarded but limited to the 18 months preceding exit under section 28(4), given the respondent's failure to produce leave records under section 74(1)(f)

Reasoning

Section 28(4) caps the taking of accrued leave within eighteen months of the leave earning period. The respondent, obliged to maintain leave records under section 74(1)(f), produced none, so there was no proof of leave taken and the claim succeeded only within the statutory window.

p. 7

Legal principles established

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  • Section 43(1) of the Employment Act places the burden on the employer to prove that the reason for termination was valid and fair; where the alleged victim of the misconduct is not called as a witness, the employer's evidence is hearsay and the burden is not discharged
  • A disciplinary hearing held within 24 hours of the alleged misconduct, without formal notice contemplated under section 41 of the Employment Act, does not satisfy the fair process requirement
  • A party who alleges forgery of a document bears the burden of proving the allegation, and a payslip is not the appropriate source for interpreting contractual terms
  • Accrued leave pay claims are limited to the 18-month window under section 28(4) of the Employment Act, and the employer's failure to produce leave records under section 74(1)(f) supports the employee's claim

Court orders

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  1. 1.A declaration that the claimant's termination by the respondent was unfair and unlawful
  2. 2.Compensatory damages of Kshs 101,085.00 equivalent to 6 months of gross salary
  3. 3.Accrued leave pay of Kshs 17,689.35
  4. 4.Underpayment damages of Kshs 28,656.60 from May 1, 2015 up to February 28, 2018
  5. 5.Total award of Kshs 147,430.95 with interest at court rates from the date of judgment until payment in full
  6. 6.The claimant shall have the costs of the suit
  7. 7.The respondent shall issue the claimant with a certificate of service within 30 days from the date of the judgment

Authorities

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Legislation

  • Employment Actsection 5
  • Employment Actsections 41, 43(1), 45(2)(a), (b), (c), 28(4), 74(1)(f)
  • Evidence Actsection 107(1), (2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48
  • Legal Notice No 196 of 2013minimum statutory wage for a machine assistant
  • Legal Notice No 116 of 2015minimum statutory wage
  • Legal Notice No 111 of 2017minimum statutory wage

Cases cited (7)

  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    (2014) eKLR
  • Silas Owiti & another v Fidelity Commercial Bank Limited
    (2017) eKLR
  • Nicholas Otinyu Muruka v Equity Bank Limited
    (2013) eKLR
  • Kennedy Maina Mirera v Barclays Bank of Kenya Limited
    (2018) eKLR
  • Nebert Mandala Ombajo v Institute of Certified Public Accountants of Kenya (ICPAK)
    Nakuru civil appeal No 62 of 2018
  • Demutila Nanyama Pururmu v Salim Mohamed Salim
    [2021] eKLR
  • Grain Pro Kenya Inc Ltd v Andrew Waithaka Kiragu
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007

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, "Kimanzi v United Paints Limited (Cause 990 of 2018) [2023] KEELRC 871 (KLR)", Case Analysis (2023). Cause No 990 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/871/eng@2023-04-14

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