Njengi v Powerstar Supermarket Kikuyu Limited (Cause 751 of 2018) [2023] KEELRC 1962 (KLR)
The bottom line
#A Kenyan court ruled a supermarket manager's dismissal unfair because he was never heard or told why, awarding him damages and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the correct employer was sued
The claimant impleaded his employer correctly; the NSSF statement indicated Powerstar Supermarket Kikuyu Limited and the respondent attached no evidence to the contrary.
The respondent contended the employer was Powerstar Supermarket Kitengela Limited, but attached no evidence to its defence showing a different employer. The claimant's NSSF statement showed Powerstar Supermarket Kikuyu Limited as employer. The court therefore found the claimant had sued the correct party.
Whether the dismissal was lawful and fair
The dismissal was unlawful, wrongful and unfair: the claimant was not afforded a hearing, not informed of any reason, and the respondent proved no valid reason.
The respondent closed its defence without calling evidence, leaving the claimant's evidence unchallenged. There was no hearing, no show-cause letter, and no reason communicated. The court held the dismissal contravened employment law and natural justice, and awarded six months' salary as compensation.
Entitlement to notice pay, leave pay and house allowance
The claimant was awarded one month's notice pay, one month's pay in lieu of leave (inclusive of house allowance) and house allowance for 12 months only.
Non-payment of house allowance and leave was a continuing wrong acquiesced in during employment, so recovery was limited to the last year. House allowance was computed at 15% of salary given the absence of a written contract or consolidation agreement.
Overtime claim
The overtime claim failed for want of particularisation.
The claimant did not specify on which dates he worked overtime or the average hours worked, making quantification impossible. The claim was therefore vague and not payable.
Legal principles established
#- An employer bears the statutory responsibility to maintain employment records under section 74 of the Employment Act, and failure to produce them weighs against the employer.
- An unparticularised overtime claim is not payable because it cannot be ascertained.
Court orders
#- 1.A declaration that the dismissal of the claimant is unlawful, wrongful and unfair
- 2.One month's salary in lieu of notice – Kshs. 45,000/-
- 3.House allowance for 12 months – Kshs. 81,000/-
- 4.Kshs. 51,570/- being one month's salary inclusive of house allowance as payment in lieu of leave
- 5.Compensation for unfair and unlawful termination at 6 months – Kshs. 310,500/-
- 6.Certificate of service
- 7.Costs of the suit to the claimant
- 8.Interest on the sums in (b), (c), (d) and (e) at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act reliefs invoked; no specific constitutional article pleaded as source of jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njengi v Powerstar Supermarket Kikuyu Limited (Cause 751 of 2018) [2023] KEELRC 1962 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1962/eng@2023-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.