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ELRCPartially AllowedNot stated in the excerpt· [2024] KEELRC 94 (KLR)

Nyoike v Urithi Housing Cooperative Society Limited (Cause 777 of 2018) [2024] KEELRC 94 (KLR)

Employment and Labour Relations Court
31 January 2024
JRJAMES RIKA
1,986 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled an employee's dismissal unfair because the employer gave no reason and denied her a fair hearing, awarding her over Kshs. 483,000.

What this practically means

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Executive summary

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The claimant, employed by the respondent as an Accountant Grade UHCSL 4 from March 1, 2016 at a gross monthly salary of Kshs. 60,484, sued for unfair termination. She went on maternity leave in June 2017, delivered twins, and her medical bill of Kshs. 559,935 was unpaid by the insurer. In January 2018 she was invited to an Executive Board Committee meeting with no stated agenda, where she was asked to apologise for alleged rudeness and refused. She was denied January 2018 salary, and on February 21, 2018 her contract was terminated by letter that gave no reason. The respondent alleged indiscipline, insubordination and rudeness to the Board Chairman and clients, and argued she was accorded a fair hearing and paid terminal benefits. The respondent called no witnesses. The court framed three issues: valid reason, fair procedure, and the prayers sought. It found the termination letter disclosed no reason as required by Section 43 of the Employment Act; the pleaded reasons were unsupported by any evidence, as the Board Chairman did not testify; and the claimant was never told the meeting was a disciplinary one, nor advised of her Section 41 rights to be accompanied. Termination was therefore unfair for want of valid reason and fair procedure. Reinstatement was declined as time-barred under section 12(3)(viii) of the ELRC Act; notice pay and commission were declined as paid or lacking contractual basis; medical reimbursement was declined as the respondent procured but did not underwrite the cover. Annual leave of Kshs. 60,484 and seven months' compensation of Kshs. 423,388 were awarded, with costs and interest at court rate from judgment until payment in full.

Key legal issues

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01

Whether termination was founded on valid reason

Holding

Termination was not founded on valid reason; the alleged rudeness and indiscipline were unsupported by any evidence

Reasoning

The termination letter gave no reason, merely stating services were no longer required. The reason pleaded (rudeness to the Board Chairman) was unsupported by documentary or oral evidence; the Chairman did not testify. Other allegations of insubordination and rudeness to clients and colleagues were likewise unsupported and never communicated to the claimant.

p. 3
02

Whether termination was executed fairly

Holding

Termination was procedurally unfair under Section 41 of the Employment Act

Reasoning

The claimant was invited to a Board meeting without an agenda and was not told it was a disciplinary or show-cause meeting. No charges were issued, and she was not advised of her right to attend with a colleague or trade union representative as required by Section 41 of the Employment Act.

p. 3
03

Whether the claimant merits the prayers sought

Holding

Only annual leave and compensation for unfair termination allowed; reinstatement, notice pay, commission and medical reimbursement declined

Reasoning

Reinstatement was time-barred under section 12(3)(viii) of the ELRC Act. Notice pay was conceded as paid. Commission had no contractual or documentary basis. Medical reimbursement failed because the respondent only procured the cover and had no power to direct the insurer; the claim lay against the Insurance Company.

p. 4

Legal principles established

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  • A termination letter must disclose the reason or reasons justifying termination under Section 43 of the Employment Act
  • An employer must comply with Section 41 of the Employment Act by specifying charges and allowing an employee to be accompanied at a disciplinary hearing
  • An employer bears the evidential burden to keep and produce annual leave records under Section 74(1)(f) of the Employment Act

Court orders

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  1. 1.It is declared that termination was unfair
  2. 2.The claimant is allowed the prayers for annual leave at Kshs. 60,484 and compensation for unfair termination at Kshs. 423,388 - total Kshs. 483,872
  3. 3.Costs to the claimant
  4. 4.Interest allowed at court rate, from the date of Judgment, till payment is made in full
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12(3)(viii); Employment Act, 2007 (Sections 41, 43, 45)

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, "Nyoike v Urithi Housing Cooperative Society Limited (Cause 777 of 2018) [2024] KEELRC 94 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/94/eng@2024-01-31

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