Kamula v Meditec East Africa Fairlife Ltd (Cause E038 of 2022) [2023] KEELRC 2709 (KLR)
The bottom line
#A Kenyan court ruled an employer unfairly fired a manager, awarding three months' pay but rejecting claims for the full remaining contract salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant resigned by her conduct
No resignation; objectively there was no clear or unambiguous intention to resign.
The Respondent relied on the Claimant requesting a termination letter and abruptly leaving a virtual performance meeting. The Court held that objectively there was no clear or unambiguous intention to resign; the Respondent's 1 March 2022 reply gave notice of termination and never referred to any resignation, and the employer could have accepted a resignation or repudiation had one existed.
Whether the termination was unfair
The termination was procedurally unfair for want of notice of allegations and a hearing under section 41 of the Employment Act.
The meeting of 28 February 2022 was a performance review, not a disciplinary hearing. The Respondent terminated on allegations of misconduct (insubordination) without notifying the Claimant of the intention to terminate or affording her an opportunity to make representations with a colleague, rendering the decision devoid of procedural fairness.
Entitlement to pay in lieu of notice
Not entitled, as one month's notice was given and the March 2022 salary was paid.
The Respondent issued a notice of termination on 1 March 2022 and paid the Claimant's March 2022 salary, so notice was effectively given and no pay in lieu is due.
Lost income for the unexpired term of the contract
Rejected; no contractual foundation and such claims are speculative.
The Claimant sought Kshs 2,280,000/- being the salary she would have earned to the end of the contract, relying on Mbue and Myagah, but placed no contractual foundation for the head of claim. The Court endorsed the Supreme Court of Uganda's holding in Bank of Uganda v Tinkamanyire that compensation for the unexpired period is unattainable and speculative.
Service pay
Rejected; the Claimant was an NSSF contributor and no direct challenge to section 35(5) and (6) was made.
The Claimant contributed to the NSSF and the Respondent remitted the subscriptions. The Court declined to award service pay as an exception to section 35(5) and (6) of the Employment Act absent a direct constitutional challenge to the provision, and noted the Bowry decision concerned gratuity, which is not the same as service pay.
Legal principles established
#- A resignation is a unilateral termination of the employment contract by the employee and requires clear and unambiguous intention to leave; it need not be in writing.
- Under section 41 of the Employment Act, 2007, an employer must notify the employee of an intention to terminate and afford an opportunity to make representations before termination.
- An employee whose contract is terminated prematurely cannot be compensated for the remainder of the contract period; such claims are speculative.
- A certificate of service is a statutory entitlement.
Court orders
#- 1.Declaration that the Respondent unfairly terminated the employment of the Claimant
- 2.Compensation of Kshs 360,000/- (equivalent of 3 months' gross wages) awarded to the Claimant
- 3.Respondent to issue the Claimant a certificate of service within 30 days if not already issued
- 4.Claimant to have costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamula v Meditec East Africa Fairlife Ltd (Cause E038 of 2022) [2023] KEELRC 2709 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2709/eng@2023-11-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.