Sitienei v Sirgoi Holdings Ltd & another (Cause 26 of 2019) [2023] KEELRC 2369 (KLR)
The bottom line
#Kenya's Employment Court awarded an executive over Kshs 1.4 million because his employer fired him without a written show cause letter or a hearing.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the termination
The termination was procedurally unfair as the Claimant was not issued a show cause letter or heard.
Section 41 of the Employment Act requires an employer to explain reasons and hear the employee before termination. RW1 confirmed no show cause letter was issued; the Claimant was only invited by phone to a meeting of unclear purpose. Citing Hosea Akunga Ombwori v Bidco Oil Refineries Limited and Philip Kimosop v Kingdom Bank Limited, the court held the process fell short of Section 41.
Substantive justification for the termination
The reasons (parallel employment/conflict of interest) were not valid or fair.
RW1 admitted he was not sure the Claimant was in the service of the University of Eldoret or drawing salaries from it, and the Claimant proved his university employment had been terminated before his appointment. Applying the British Leyland reasonableness test as adopted in John Jaoko Othino v Intrahealth International, the reasons were neither valid nor justified under Sections 43, 45 and 47.
Compensation for unfair termination
Six months' salary awarded as sufficient compensation under Section 49(4).
Having found the termination unfair, the court applied the Section 49(4) factors as explained in Alphonce Maghanga Mwachanya v Operation 680 Limited and the proportionality principle in Elizabeth Wakanyi Kibe v Telkom Kenya Ltd, deeming six months' salary (Kshs. 1,020,000/-) sufficient, avoiding unjust enrichment.
Counter-claim
Counter-claim dismissed for lack of evidence.
Although the Respondents filed a counter-claim premised on the allegation of parallel employment and double salaries, no evidence was led to prove it. The court dismissed it with costs to the Claimant.
Legal principles established
#- Fairness of termination requires both procedural fairness and substantive justification; absence of either renders the termination unfair and unlawful.
- Procedural fairness under Section 41 requires a show cause letter and a hearing; failure to issue one renders termination procedurally unfair.
- The reasonableness test applies to substantive justification: if no reasonable employer would have dismissed the employee, the dismissal is unfair.
Court orders
#- 1.That the Claimant's termination is unfair and unlawful.
- 2.That the Respondents jointly and severally, pay the Claimant salary for the months of August and September, 2018 at Kshs. 340,000/-
- 3.Payment of Kshs. 70,000/- on account of accrued leave.
- 4.Six (6) months' salary as compensation for the unfair termination at Kshs. 1,020,000/-
- 5.Costs of the suit and interest until payment in full.
- 6.The counter-claim is dismissed with costs to the Claimant.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47(5), 49 and 50 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sitienei v Sirgoi Holdings Ltd & another (Cause 26 of 2019) [2023] KEELRC 2369 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2369/eng@2023-10-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.