Kabusu t/a Oloita Butchery v Ndulu & another (Employment and Labour Relations Appeal E166 of 2022) [2023] KEELRC 2428 (KLR)
The bottom line
#Kenyan employers who fail to prove valid reasons and fair process for dismissal in court will lose, and may even pay more.
What this practically means
#Executive summary
#Key legal issues
#Substantive fairness of termination
The termination was substantively unfair as the Appellant failed to prove a justifiable reason for termination
Section 43(1) places the burden of proving reasons for termination on the employer, and Section 45(2) renders termination unfair where the employer fails to prove a valid and fair reason. The Appellant elected not to call oral evidence or adduce documents at trial, and no termination letters were on record, so the reasons could not be ascertained. The evidential burden therefore remained undischarged, rendering the terminations substantively unfair.
Procedural fairness of termination
The termination was procedurally unfair as the Appellant did not comply with Section 41 of the Employment Act
Section 41(1) requires notification of allegations in a language understood by the employee, an explanation of the grounds of termination, the right to be accompanied by a fellow employee or union representative of choice, and consideration of representations. The Appellant led no evidence of how the Respondents were notified, invited to the hearing, or afforded the right to be accompanied. An admission that a hearing took place was insufficient to discharge the burden.
Underpayment awards
The Respondents were underpaid relative to the statutory minimum wage and the awards were adjusted upward
The trial Court did not justify how it arrived at the sums awarded as underpayments, so the Court re-evaluated the record against the Legal Notices on minimum wage for 2011, 2012, 2013, 2015, 2017 and 2018. The evidence established that the Respondents were underpaid during certain periods from 1st May 2011 to 15th February 2019, entitling them to the difference, and the awards were recalculated.
Legal principles established
#- The burden of proving the reasons for termination rests on the employer, failing which the termination is unfair
- An employer who fails to adduce evidence cannot discharge the statutory burden of proving a valid and fair reason for termination
- A mere invitation to a hearing does not satisfy the minimum requirements of a fair hearing under Section 41 of the Employment Act
- On a first appeal the court must re-evaluate the evidence and draw its own independent conclusions
Court orders
#- 1.For the 1st Respondent: compensatory damages of one month's salary (Kshs 14,658.00), one month's salary in lieu of notice (Kshs 14,658.00), salary for 14 days worked (Kshs 7,892.00) and underpayment adjusted to Kshs 356,104.90 sustained
- 2.The 1st Respondent's decretal amount of Kshs 378,572.00 set aside and award determined at Kshs 393,312.90
- 3.For the 2nd Respondent: compensatory damages of one month's salary (Kshs 14,658.00), one month's salary in lieu of notice (Kshs 14,658.00), salary for 14 days worked (Kshs 7,892.00) and underpayment adjusted to Kshs 309,104.90 sustained
- 4.The 2nd Respondent's decretal amount of Kshs 338,572.00 set aside and award determined at Kshs 346,312.90
- 5.Interest on the determined awards at court rates from the date of Judgment until full payment
- 6.Costs in this Court and at the trial Court borne by the Appellant, pegged on the final award
- On appeal from
- Chief Magistrate's Court at Milimani
- CMEL No. 958 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Chief Magistrate's Court (ELC/ELRC matters) under the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabusu t/a Oloita Butchery v Ndulu & another (Employment and Labour Relations Appeal E166 of 2022) [2023] KEELRC 2428 (KLR)", Case Analysis (2023). Appeal against CMEL No. 958 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2428/eng@2023-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.