Kimanzi v United Paints Limited (Cause 990 of 2018) [2023] KEELRC 871 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of the termination
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
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.
Procedural fairness of the termination
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
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.
Authenticity of the contract of employment and house allowance claim
The claimant failed to prove his allegation of forgery and the consolidated salary clause defeated the house allowance claim
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.
Underpayment claim
Partly allowed; underpayment established for May 2015 to February 2018 by comparison with statutory minimum consolidated wages under the relevant legal notices
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.
Accrued leave pay
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)
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.
Legal principles established
#- 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
#- 1.A declaration that the claimant's termination by the respondent was unfair and unlawful
- 2.Compensatory damages of Kshs 101,085.00 equivalent to 6 months of gross salary
- 3.Accrued leave pay of Kshs 17,689.35
- 4.Underpayment damages of Kshs 28,656.60 from May 1, 2015 up to February 28, 2018
- 5.Total award of Kshs 147,430.95 with interest at court rates from the date of judgment until payment in full
- 6.The claimant shall have the costs of the suit
- 7.The respondent shall issue the claimant with a certificate of service within 30 days from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.