Molonket v East African Portland Cement Company (Cause 198 of 2019) [2023] KEELRC 2137 (KLR)
The bottom line
#A Kenyan court awarded a fired manager over Kshs 15 million because a contract's notice clause doesn't let an employer skip fair procedure.
What this practically means
#Executive summary
#Key legal issues
#Substantive and procedural fairness of termination on notice
The termination, effected by Board resolution without show cause or hearing, was substantively and procedurally unfair despite reliance on the contract's clause 25(a) notice provision
The Respondent relied on clause 25(a) permitting termination on three months' notice or pay in lieu. The court held that the Employment Act (ss. 43 and 45) abolished termination at will, requiring reasons and procedural fairness. No evidence showed the Claimant underperformed; no show cause or hearing was given; the Board minutes were not produced. The termination was therefore unfair.
Discrimination
The Claimant proved discrimination; she was the only reassigned manager deployed to a non-existent position, and damages of Kshs. 10,000,000/- were awarded following Ol Pejeta Ranching Ltd v David Wanjau Muhoro
Colleagues reassigned in the restructuring were given positions existing in the organisation structure; the Claimant alone was sent to a non-existent role and asked to go on leave while a job description was formulated. The court found this differential treatment proved discrimination and, adjusting the Kshs. 7.5 million benchmark in Ol Pejeta for the passage of time, awarded Kshs. 10 million.
Sexual harassment claim – res judicata
The sexual harassment claim is res judicata, having been determined and dismissed by Ndolo J. in Petition No. 137 of 2016
The court accepted the Respondent's submission that the harassment allegations had already been litigated and dismissed in Petition No. 137 of 2016 (Lucy Rimanto Molonket v Simon Peter Ole Nkeri & 7 others), decided by Ndolo J., and held the issue not open for determination in this suit.
Compensation quantum
Compensation set at 6 months' salary (Kshs. 4,257,600/-) rather than the maximum 12 months, noting notice pay had been received though no evidence of payment was produced
Neither party produced evidence of the payment of notice pay, but the court factored the fact that notice pay was received in moderating the award. It declined the maximum 12 months' compensation sought and fixed compensation at six months' gross salary.
Legal principles established
#- Termination under a contractual notice clause must still satisfy statutory requirements of substantive justification and procedural fairness
- Termination at will was abolished by the Employment Act's requirement for reasons
- Differential treatment in deployment to a non-existent position constitutes workplace discrimination
Court orders
#- 1.Accrued leave – Kshs. 908,182/-
- 2.Damages for discrimination – Kshs. 10,000,000/-
- 3.Compensation for unfair termination set at 6 months – Kshs. 4,257,600/-
- 4.Costs of the suit
- 5.Interest on the sums in (i), (ii) and (iii) at court rates from date of judgment till payment in full
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations claims (Employment Act; related Petition No. 137 of 2016 decided by Ndolo J. referred to as res judicata on sexual harassment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Molonket v East African Portland Cement Company (Cause 198 of 2019) [2023] KEELRC 2137 (KLR)", Case Analysis (2023). Cause No 198 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2137/eng@2023-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.