Gikundi v Kenya National Chambers of Commerce & Industry & another (Employment and Labour Relations Cause E013 of 2021) [2023] KEELRC 1528 (KLR)
The bottom line
#A Kenyan court ruled an employee dismissed without reasons, notice, or a hearing was unfairly terminated and awarded him Kshs 350,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair and unlawful
Termination was unfair and unlawful under section 45 of the Employment Act; no reason given, no notice, no hearing, and respondents adduced no evidence.
The claimant's uncontroverted evidence showed continuous employment from 2014 (with a contract dated 1 August 2018) until April 2020. The contract was not a fixed-term contract after the initial 6-month term lapsed. The respondents never entered appearance or rebutted the claim, so failed to prove a valid and fair reason or fair procedure, satisfying section 45(2).
Continuity of employment after lapse of fixed term
Claimant deemed in continuous employment after the 6-month term contract lapsed.
The court found a written contract dated 1 August 2018 for 6 months, but bank statements showed salary payments continued until February 2020. The parties did not indicate a fixed term after the lapse of the initial contract, so employment was continuous and protected by section 45.
Notice period payable
One month's salary awarded in lieu of notice despite contract providing two weeks.
Although the contract provided a two-week termination notice, the minimum statutory notice for an employee paid monthly is 28 days, effectively one month; hence Kshs 50,000 awarded.
Quantum of compensation for unfair termination
Three months' gross salary (Kshs 150,000) awarded instead of the 12 months sought.
The court exercised discretion under sections 49 and 50 of the Employment Act, considering the short service of about two years but absence of warning letters or disciplinary issues.
Legal principles established
#- An employee who remains in continuous employment after lapse of an initial fixed-term contract is deemed not to be on a fixed-term contract and is protected from unfair termination under section 45 of the Employment Act.
- Where a respondent does not enter appearance or tender evidence, uncontroverted evidence stands and the employer bears the burden of proving valid reason and fair procedure for termination.
Court orders
#- 1.Judgment entered for the claimant against the respondents: Notice Kshs 50,000.00; Compensation Kshs 150,000.00; Salary arrears Kshs 150,000.00, total Kshs 350,000.00
- 2.Award subject to statutory deductions
- 3.Claimant awarded costs of the suit
- 4.Interest at court rate from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance statement of claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikundi v Kenya National Chambers of Commerce & Industry & another (Employment and Labour Relations Cause E013 of 2021) [2023] KEELRC 1528 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1528/eng@2023-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.