Wangui v Unaitas Sacco Limited (Cause 1716 of 2017) [2023] KEELRC 2022 (KLR)
The bottom line
#A Kenyan court ruled a Credit Administrator's dismissal unfair because the employer couldn't prove its reasons or follow fair procedure, awarding Kshs 1.19 million.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
Respondent failed to prove valid and fair reasons; termination was unfair
The audit report of 2nd November 2016 relied upon by the Respondent was never produced in evidence. The allegations (refinancing defaulted loans, splitting loans, advancing unsecured loans, compromising due diligence) were general and lacked particulars. Consequently no evidence justified the termination, failing the test under Section 43(1) as read with Section 45(2)(a) and (b) of the Employment Act.
Procedural fairness under Section 41
Termination was procedurally unfair as the Claimant was not notified of the allegations or the nature of the disciplinary hearing, nor of his right to be accompanied
The Claimant was merely called by the receptionist to attend a meeting whose purpose was not disclosed. No evidence of a notification letter was produced. The suspension letter referred to ongoing investigations, so allegations had not crystallised. Adverse inference drawn against the Respondent for failing to prove procedural compliance.
Salary during suspension
Claimant entitled to salary for the suspension period as the suspension letter did not state it was unpaid
The suspension was involuntary; the letter did not state it was without pay and the Respondent produced no Human Resource Manual or policy providing for unpaid suspension. Salary from 15th July 2016 to 16th November 2016 was awarded.
Legal principles established
#- An employer bears the burden of proving valid and fair reasons for termination; failure renders the termination unfair under Sections 43(1) and 45(2) of the Employment Act
- General allegations without particulars against an employee cannot justify termination
- Where an employer fails to produce evidence of notification of disciplinary allegations, an adverse inference is drawn against it
- Suspension must be expressly stated to be without pay; otherwise salary during suspension is payable
Court orders
#- 1.A declaration that the Claimant's dismissal was unfair and unlawful
- 2.One (1) month's salary in lieu of notice being Kshs 99,000.00
- 3.Compensatory damages in the sum of Kshs 693,000.00 being equivalent to seven (7) months of the Claimant's gross salary
- 4.Unpaid salary during the Claimant's suspension from 15th July, 2016 to 16th November, 2016 being Kshs 396,000.00
- 5.Unpaid leave pay being Kshs 5,520.00
- 6.Total award of Kshs 1,193,520.00
- 7.Interest on the total award at court rates from the date of Judgment until payment in full
- 8.Costs of the suit to the Claimant
- 9.Certificate of Service to issue within 30 days from the date of Judgment in line with Section 51(1) of the Employment Act
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 74, 35(6), 51(1))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wangui v Unaitas Sacco Limited (Cause 1716 of 2017) [2023] KEELRC 2022 (KLR)", Case Analysis (2023). Cause No 1716 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2022/eng@2023-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.