Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 2341 (KLR)

Ngure v Sendy Limited (Cause 497 of 2018) [2023] KEELRC 2341 (KLR)

Employment and Labour Relations Court
28 September 2023
MMM. Mbarũ
2,113 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled firing an employee without notice and a hearing is unfair, even if the employer claims poor performance.

What this practically means

#

Executive summary

#
The claimant, employed by the respondent on February 1, 2017 as head of sales on a one-year renewable contract, sued for unfair termination. He was sent on one month's compulsory leave in late October 2017 and, on the morning he was to resume duty, was summoned to a breakfast meeting away from the office on December 1, 2017 where he was informed the board had decided to relieve him of his duties. He was neither paid for December 2017 nor given notice, hearing or terminal dues, and he claimed notice pay, 12 months' compensation, overtime and gratuity. The respondent defended the termination as founded on poor performance, failure to meet KPIs, negligence causing a loss of Ksh 1,237,785, and personal conduct disrupting the office, contending notice was paid in lieu. The court framed three issues: unfairness, remedies and costs. Relying on Section 41 of the Employment Act and National Bank of Kenya v Samuel Nguru Mutonya, the court held the burden of proving poor performance rests on the employer and that performance could not be reviewed while the claimant was on approved leave. Terminating him within five days, without notice and hearing, was procedurally and substantively unfair. Compensation of one month (Ksh 390,000) and pay for five days worked in December 2017 (Ksh 65,000) were awarded; overtime failed for want of approval and particularisation, and gratuity failed as it was not a contractual term, the respondent having complied with Section 35(5) and (6). Each party was ordered to bear its own costs, and the file was returned to the ELRC Nairobi Registry.

Key legal issues

#
01

Whether the termination of the claimant's employment was unfair

Holding

The termination was both procedurally and substantively unfair because the claimant was terminated without notice and a hearing as required by Section 41 of the Employment Act, and the respondent failed to discharge the high burden of proving poor performance.

Reasoning

The claimant was sent on compulsory leave with the employer's approval; his performance could not lawfully be reviewed while he was away enjoying his leave rights under Section 28. Before he could resume duty he was summoned to a meeting outside the office and, within five days, his employment was terminated. No notice of charges or hearing under Section 41 preceded the termination. The court applied National Bank of Kenya v Samuel Nguru Mutonya and the Chitavi ingredients of procedural fairness, holding the employer failed the threshold.

p. 4
02

What remedies flow from the finding of unfair termination

Holding

One month's compensation at Ksh 390,000 and pay for 5 days worked in December 2017 at Ksh 65,000 were awarded; overtime and gratuity claims failed for lack of proof and contractual basis.

Reasoning

The claimant earned Ksh 390,000 monthly, worked under a year on a contract due to lapse in January 2018, and was denied a fair chance to complete it, justifying one month's compensation. Notice pay and December salary had been paid; separately, the 5 days actually worked in December 2017 were payable. Overtime was unproved and unparticularised, and gratuity was not a contractual term, the respondent having complied with Section 35(5) and (6).

p. 5

Legal principles established

#
  • Where an employer alleges poor performance, the employer bears a high level of proof and must follow the due-process requirements of Section 41 of the Employment Act; it is not sufficient to merely assert poor performance.
  • Terminating an employee within days of summoning him before he could resume duty from approved leave, without notice and hearing under Section 41, is procedurally and substantively unfair.

Court orders

#
  1. 1.Judgment entered for the claimant against the respondent with an order that employment terminated unfairly
  2. 2.Compensation for unfair termination awarded at Ksh 390,000 (one month)
  3. 3.Pay for 5 days worked in December 2017 at Ksh 65,000
  4. 4.Each party to bear own costs
  5. 5.The file shall be returned to ELRC Nairobi Registry

Authorities

#

Legislation

  • Employment Act, 2007Section 41(1)
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 44(4)(c) and (e)
  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 28
  • Employment Act, 2007Section 35(5) and (6)

Cases cited (2)

  • National Bank of Kenya v Samuel Nguru Mutonya
    [2019] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ngure v Sendy Limited (Cause 497 of 2018) [2023] KEELRC 2341 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2341/eng@2023-09-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.