Kithuka & 2 others v Herisquare Limited (Cause 729 of 2016) [2023] KEELRC 1438 (KLR)
The bottom line
#A Kenyan court awarded three unfairly dismissed workers up to ten months' salary because their employer skipped the mandatory hearing process and couldn't prove its reasons.
What this practically means
#Executive summary
#Key legal issues
#Whether the terminations were procedurally fair under section 41 of the Employment Act
The terminations were procedurally unfair because the Respondent did not notify the Claimants of the grounds or accord them an opportunity to be heard, and the Respondent adduced no evidence to discharge its burden
Procedural fairness under section 41 has three components: notification of the grounds, a hearing with the right to accompaniment, and consideration of representations. The Respondent, which bore the burden of proving procedural fairness, offered no evidence; the Claimants' unchallenged testimony stood. The section is mandatory and deviation renders termination unfair even with substantive justification.
Whether the terminations were substantively justified under sections 43 and 45(2) of the Employment Act
The terminations were substantively unfair because the Respondent failed to adduce evidence proving valid and fair reasons
Section 45(2) obliges the employer to prove that the reason for termination is valid and fair, related to conduct, capacity or compatibility, or operational requirements. Legal burdens are discharged by adducing evidence; the Respondent produced none, leaving the reasons unproven. The Claimants had discharged their burden under section 47(5) by prima facie establishing the terminations were unlawful.
Entitlement to notice pay, leave pay, refunds of unlawful deductions and compensatory awards
The Claimants were awarded notice pay under sections 35 and 36, leave pay under section 28, refunds of KShs 11,000 each for unlawful deductions under section 19, and 10 months' gross salary as compensation under section 49(1)(c)
The contracts were terminable by twenty-eight days' notice and no notice was given, so notice pay was due. Annual leave is a statutory right that cannot be contracted out and the uncontradicted evidence was that leave was never taken. Deductions of KShs 8,500 and KShs 2,500 were unchallenged and outside section 19. Compensation was assessed at 10 months' gross salary considering the short service, absence of contribution and the contracts not running their course.
Legal principles established
#- Fairness in termination comprises both substantive justification and procedural fairness; absence of either component renders a termination unfair
- The procedure under section 41 of the Employment Act is mandatory and deviation from it renders a termination unfair even where there is substantive justification
- Submissions are not a substitute for evidence and carry no evidential value
- The burden of establishing hours or days served in excess of the legal maximum for an overtime claim rests with the employee
Court orders
#- 1.A declaration that the termination of the Claimants' employment was both procedurally and substantively unfair
- 2.One month's salary in lieu of notice: 1st Claimant KShs 17,000; 2nd Claimant KShs 12,500; 3rd Claimant KShs 25,000
- 3.Payment for untaken leave: 1st Claimant KShs 11,900; 2nd Claimant KShs 8,750; 3rd Claimant KShs 17,500
- 4.Refund of unlawfully deducted salary: KShs 11,000 each to the 1st and 2nd Claimants
- 5.Compensation for unfair termination at 10 months' gross salary: 1st Claimant KShs 170,000; 2nd Claimant KShs 125,000; 3rd Claimant KShs 250,000
- 6.Interest on the sums awarded from the date of judgment until payment in full
- 7.The Respondent condemned to bear the costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act over causes of unfair termination under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kithuka & 2 others v Herisquare Limited (Cause 729 of 2016) [2023] KEELRC 1438 (KLR)", Case Analysis (2023). Cause Number 729 of 2016 (consolidating Cause 731 of 2016 and Cause 2229 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1438/eng@2023-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.