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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 19 (KLR)

Njore v Decasa Hotel (Cause 1478 of 2016) [2024] KEELRC 19 (KLR)

Employment and Labour Relations Court
25 January 2024
JGJACOB GAKERI
1,770 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Even when an employer has a valid reason to fire someone, skipping the required hearing makes the dismissal unfair and costly in Kenya.

What this practically means

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Executive summary

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The Claimant sued the Respondent for unfair termination of employment, alleging he was employed on 1st June 2015 on a six-month contract at a retainer of kshs.20,000/= per month, with a promised additional kshs.15,000/= per month for supervision services. He sought terminal benefits totalling kshs.253,013/=, costs and interest. The Respondent admitted the employment but asserted the Claimant was an average performer who attempted to poach staff for a rival, that he was heard, paid his dues, and that the contract was simply not renewed. The court framed two issues: whether the termination was unfair and whether the Claimant was entitled to the reliefs sought. On substance, the court found the allegation that the Claimant attempted to recruit a named employee for a competitor was uncontroverted and constituted a valid and fair reason for termination under Sections 43 and 45(2) of the Employment Act, 2007. On procedure, however, the Respondent neither issued a notice to show cause nor availed evidence of a disciplinary hearing or its minutes, breaching the mandatory process under Section 41; the termination was therefore procedurally flawed and unfair. The Claimant was awarded compensation of the equivalent of two months' salary (kshs.40,000/=) under Section 49(1)(c), and a retainer for his actual service period of 3 months and 8 days if not already paid. Claims for August commission, September sales and supervision allowance were declined for want of proof. Judgment was entered for the Claimant with costs and interest at court rates from the date of judgment.

Key legal issues

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01

Whether there was a valid and fair reason for termination

Holding

The Respondent proved, on a balance of probabilities, a valid and fair reason - the Claimant's alleged attempt to poach staff for a competitor, which the Claimant did not respond to or deny

Reasoning

The Respondent admitted cancelling the contract before expiry because the Claimant attempted to recruit one Francis Shimoli for a competitor. The Claimant did not respond to or deny this allegation in his witness statement, leaving the Respondent's evidence uncontroverted. The court found this satisfied the substantive justification requirement under Sections 43 and 45(2) of the Employment Act, 2007.

p. 3
02

Whether the termination was procedurally fair

Holding

The termination was procedurally flawed and unfair; no notice to show cause was issued and no evidence of a hearing or minutes was availed

Reasoning

Section 41 of the Employment Act, 2007 prescribes the mandatory procedure: notification of reasons, entitlement to representation, a hearing and consideration of representations. RWI admitted there was no termination notice, no recorded warning, and no minutes of any hearing. Absent proof of compliance, the termination failed the procedural fairness test and was unfair, entitling the Claimant to compensation under Section 49(1)(c).

p. 4
03

Quantum of compensation and monetary claims

Holding

Compensation fixed at the equivalent of two months' salary (kshs.40,000/=); retainer awarded for the actual service period of 3 months and 8 days; other monetary prayers declined for want of proof

Reasoning

In assessing compensation the court considered the short duration of service (3 months and 8 days), the Claimant's failure to express a wish to continue in employment, absence of an appeal against termination, and absence of prior warnings. Commission and September sales claims lacked evidential foundation, and the alleged verbal supervision agreement was unproven.

p. 5

Legal principles established

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  • For a termination to pass the fairness test, there must be both substantive justification and procedural fairness
  • Section 41 of the Employment Act prescribes a mandatory process for termination
  • Failure to issue a notice to show cause and conduct a documented hearing renders termination procedurally unfair

Court orders

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  1. 1.Retainer for 3 months and 8 days, if not paid
  2. 2.Equivalence of 2 months' salary kshs.40,000/= as compensation under Section 49(1)(c) of the Employment Act, 2007
  3. 3.Costs of this suit to the Claimant
  4. 4.Interest at court rates from date of judgment till payment in full

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)
  • Employment Act, 2007Sections 43, 45(2), 41, 49(1)(c)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (6)

  • Re Waswa's case
    (2022) eKLR
  • Abisalom Ajusa Magomere v Kenya Nut Co Ltd
    (2014)
  • Noah Sirengo Chelot v Post bank Savings Bank
    (2015) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Naima Khamis v Oxford University Press (EA) Ltd
    (2017) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    (2017) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction; Employment Act, 2007 (suit for unfair termination of employment)

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, "Njore v Decasa Hotel (Cause 1478 of 2016) [2024] KEELRC 19 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/19/eng@2024-01-25

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