Andeyi v Street Children’s Assistance Network of Nakuru (Cause 16 of 2016) [2023] KEELRC 2820 (KLR)
The bottom line
#A Kenyan court ruled firing an employee based only on suspicion, without a proper disciplinary hearing, was unfair and awarded him over Kshs.467,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was substantively fair
It was not; the respondent failed to establish genuine and reasonable grounds for termination.
The show-cause letter and minutes of 1st July 2013 alleged neglect of duty leading to sexual abuse of younger boys, but the termination letter cited insubordination. The contradiction left the reason for termination uncertain. No disciplinary hearing was held after the show-cause letter at which specific charges, evidence and a defence opportunity could have confirmed the suspicion. Suspicion alone, however strong, is not a fair ground for termination under Sections 43, 44 and 45 of the Employment Act.
Whether the termination was procedurally fair
It was not; the claimant was denied a hearing and his rights were not explained to him.
After the show-cause letter no disciplinary meeting was convened. The claimant was not informed of the date and venue of a hearing, the specific charges and evidence against him, his right to call witnesses or be accompanied, or his right of appeal. The meeting of 1st July 2013 predated the show-cause letter and could not count as a hearing. The lapses offended natural justice, Article 47 of the Constitution and the Fair Administrative Action Act.
Entitlement to the reliefs claimed
Partially allowed: notice pay, partial overtime, partial public holidays and six months' compensation awarded; underpayment, leave and gratuity denied.
Section 90 of the Employment Act confines awards to the three years preceding the cause of action, excluding claims from 1991. Notice pay was due as the respondent did not prove notice was served or paid for. Overtime and public holiday claims were partially proved, the employer having failed to produce employment records under Sections 10 and 74. Leave was settled by payment of Kshs.17,185. Gratuity was not contractual.
Appropriate compensation for unfair termination
Six months' gross pay (Kshs.90,000) as fair and reasonable compensation under Section 49.
The court balanced the factors in Section 49(4): although the hearing was unfair, the employment relationship had irretrievably broken down on the employer's suspicion; the claimant had received Kshs.17,185 in dues; and his work was not specialized. Compensation should neither reward an employer for unlawful termination nor be unreasonably punitive to the employer.
Legal principles established
#- An employer must have a lawful and genuinely established reason for termination and must follow a fair procedure, including a disciplinary hearing.
- Suspicion alone, however strong, cannot found a fair termination; the employer must raise it to genuine and reasonable levels, ordinarily through a disciplinary hearing.
- Employment claims are subject to a three-year limitation period under Section 90 of the Employment Act.
- Gratuity is not an employee's right but a discretionary payment unless the contract provides for it.
- Where the employer is statutorily obligated to keep employment records and fails to produce them, it cannot dislodge an employee's claim (e.g. overtime).
Court orders
#- 1.A declaration be and is hereby issued that the termination of the claimant was unfair and unlawful.
- 2.The claimant is awarded a sum of Kshs.467,982.18 made up of notice pay Kshs.15,000.00, overtime pay Kshs.293,751.38, public holidays Kshs.69,230.80 and compensation Kshs.90,000.00.
- 3.Costs of the cause to the claimant.
- Jurisdiction invoked
- Original jurisdiction under the Employment and Labour Relations Court Act over employment and labour relations claims
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Andeyi v Street Children’s Assistance Network of Nakuru (Cause 16 of 2016) [2023] KEELRC 2820 (KLR)", Case Analysis (2023). Cause No 16 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2820/eng@2023-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.