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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 2988 (KLR)

Kithuka v Machakos County Assembly & another (Employment and Labour Relations Cause E861 of 2017) [2023] KEELRC 2988 (KLR)

Employment and Labour Relations Court
15 November 2023
AMAnna Ngibuini Mwaure
1,639 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that a county government employee was unfairly terminated when his salary was simply stopped, awarding him Kshs 200,000 plus costs.

What this practically means

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Executive summary

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The claimant, employed as a personal assistant from 1st October 2013 at a salary of Kshs 25,000, sued the County Government of Machakos alleging that his salary was stopped in or around August/September 2015 and that he was orally told his services were no longer required, without reason, notice or a hearing. He sought compensation of Kshs 1,100,000. The respondent denied employing him, asserting it had no position of personal assistant and that any contract was with an MCA and had been terminated. The court found the appointment letter, on Machakos County Government letterhead and signed by the clerk, conclusively established employment by the respondent, and noted the absence of any letter showing MCA employment. Applying sections 41, 43 and 45 of the Employment Act and Article 41 of the Constitution, the court held the termination was cruel, unprocedural and wrongful: the claimant was never told the reason for termination, given a termination letter, or taken through a disciplinary hearing, and the respondent failed to discharge its burden of proving valid reasons. The court awarded one month's salary in lieu of notice (Kshs 25,000), leave allowance (Kshs 25,000) and six months' salary equivalent as compensation for the crude termination (Kshs 150,000), totalling Kshs 200,000 with interest at court rates, plus costs. Claims for salary arrears, severance pay, reinstatement and restoration of NHIF/NSSF were declined as unsupported or overtaken by events. Judgment was delivered virtually at Nairobi on 15th November 2023 by Anna Ngibuini Mwaure, J.

Key legal issues

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01

Whether the claimant was an employee of the respondent

Holding

The claimant was an employee of the County Government of Machakos, as evidenced by the appointment letter on the county's letterhead signed by the clerk, with no reference to employment by an MCA.

Reasoning

The court relied on the appointment letter on Machakos County Government letterhead dated September 2013, signed by the clerk, Mr Mutisya, and valid until the end of the assembly on 31st July 2017. There was no reference in the letter to employment by an MCA, and no documentary evidence was produced showing MCA employment. The witness admitted signing the appointment letter and issuing the certificate of service.

p. 2
02

Whether the termination was unfair

Holding

The termination was unfair, unprocedural and wrongful: the claimant was neither informed of the reason for termination nor given a hearing or a termination letter; salary was simply stopped.

Reasoning

Sections 41, 43 and 45 of the Employment Act and Article 41 of the Constitution mandate a fair procedure and proof of valid reasons. The respondent stopped the claimant's salary around August/September 2015 without explanation and never issued a termination letter or subjected him to any disciplinary process, failing the statutory burden on the employer. The court characterised the conduct as cruel and inhuman, relying on authorities on delayed wages and the right to be heard.

p. 3

Legal principles established

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  • In a claim arising out of termination, the employer bears the burden to prove the reasons for termination, failing which the termination is deemed unfair.
  • An employer must, before terminating employment, explain the reasons to the employee and allow the employee to have a representative present.

Court orders

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  1. 1.Judgment entered for the claimant
  2. 2.One month salary in lieu of notice of Kshs 25,000
  3. 3.Leave allowance of Kshs 25,000
  4. 4.Compensation equivalent of six months' salary of Kshs 150,000 for the unfair termination
  5. 5.Interest at court rates from date of judgment till full payment on the total award of Kshs 200,000
  6. 6.Costs of the claim awarded to the claimant
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act; Article 41 of the Constitution)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kithuka v Machakos County Assembly & another (Employment and Labour Relations Cause E861 of 2017) [2023] KEELRC 2988 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2988/eng@2023-11-15

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