Hillary v Ace Africa (Kenya) (Employment and Labour Relations Claim 9 of 2019) [2023] KEELRC 993 (KLR)
The bottom line
#A Bungoma court ruled Ace Africa unfairly sacked an employee, awarding three months' salary because the employer had no valid reason and held no hearing.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of termination
Termination lacked valid reasons existing at the time; employer proved no required minimum interview time and relied on a donor report generated after termination
The employer justified the dismissal as gross misconduct/data fraud for completing interviews in abnormally short periods. The court examined the policy documents and found no stipulated minimum interview time. The donor report said to establish fraud was generated on 9th September 2019, after the 2nd July 2019 termination, so under section 43 it could not prove reasons genuinely believed to exist at the time of termination. The reasons therefore did not qualify as valid or as operational requirements.
Procedural fairness
Termination was procedurally unfair because no notice to show cause or hearing preceded the immediate summary dismissal
The termination letter took immediate effect as summary dismissal for gross misconduct under section 44. The claimant testified uncontroverted that he was never issued a notice to show cause nor given a disciplinary hearing. Following Pius Machafu Isindu and the court's own decision in Ace Africa (Kenya) v Victor Shalakha Museve, the mandatory notification and hearing process in section 41 applies even to summary dismissal.
Appropriate remedies
Three months' gross salary compensation awarded considering remaining contract period of 6 months, prior paid notice, and employee's contribution concerns; remainder-of-contract damages and gratuity denied
Guided by section 49(4) criteria including length of service (5 years of renewals) and reasonable expectation of renewal, and noting one month's notice had already been paid, the court found three months' gross salary sufficient and equitable. Compensation is not punitive. Certificate of service was ordered as mandatory under section 51, while compensation for the remainder of the contract has no statutory basis and gratuity was neither contractual nor statutory.
Costs
Costs properly follow the event; employer's late offer to arbitrate was an afterthought after inviting the claimant to sue
The respondent proposed arbitration on 19th August 2019, thirteen days after its counsel had by letter of 5th August 2019 denied the claim and stated any suit would be defended, effectively inviting litigation. The claimant's advocates had indicated an intention to sue on 6th August 2019. The court held costs follow the event and upheld the award of costs to the claimant.
Legal principles established
#- An employer bears the burden of proving valid and fair reasons for termination existing at the time of termination; reasons established only post-termination do not satisfy section 43
- Procedural fairness, including notice and hearing under section 41(2), is mandatory even where summary dismissal for gross misconduct is contemplated under section 44
- A certificate of service is a statutory right under section 51 and an employer may not withhold it as a condition of clearance
Court orders
#- 1.Compensation award for unlawful and unfair termination equivalent of three months gross salary (Kshs 261,360/- based on monthly salary of Kshs 87,120/-), subject to statutory deductions
- 2.Certificate of service to issue under section 51 of the Employment Act
- 3.Costs of the suit to the claimant
- 4.Interest at court rates from date of judgment until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, sections 41, 43, 44, 45, 49 and 51
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hillary v Ace Africa (Kenya) (Employment and Labour Relations Claim 9 of 2019) [2023] KEELRC 993 (KLR)", Case Analysis (2023). Bungoma ELRC Cause (undisclosed in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/993/eng@2023-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.