Mori v Mitsumi Computer Garage Ltd (Cause E100 of 2022) [2024] KEELRC 235 (KLR)
The bottom line
#Kenya's Employment Court awarded a sales executive six months' salary because his employer terminated him without a reason or a hearing, but his discrimination claim failed for lack of proof.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's termination was unfair and unlawful
- 2.Whether the Claimant was discriminated against by the Respondent
- 3.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the termination was substantively and procedurally fair
Termination was unfair and unlawful - no valid reason was proved and the Claimant was not heard.
The termination letter did not state any reason; poor performance was raised only in the Respondent's evidence and submissions. The Respondent produced no appraisal forms and never subjected the Claimant to a performance improvement plan. No show cause letter, warnings or hearing in the presence of a fellow employee or representative was provided, so the Claimant was condemned unheard. Payment in lieu of notice could not cure the procedural unfairness.
Whether the Claimant was racially discriminated against
Discrimination claim rejected as unsubstantiated.
Although discrimination on account of race is prohibited by section 5 of the Employment Act, the employee must specifically plead the discrimination and its nature. The Claimant produced no colleagues' pay slips to show pay disparity, accepted his salary without seeking an increment, made no official complaint to management, never reported to the Labour Office, and produced no transport vouchers for the taxi claim.
Whether the Claimant was entitled to the reliefs sought
Partially - only compensation for unfair termination at six months' salary.
Notice pay had been paid; pay disparity and discrimination damages failed for want of proof; service pay was barred by section 35(6)(d) because the Claimant contributed to NSSF. Considering the length of service of about one year and seven months and the Respondent's conduct, the court awarded six months' salary as compensation under section 49.
Legal principles established
#- An employer must prove valid and fair reasons for termination and follow the procedural requirements of section 41 of the Employment Act; payment of salary in lieu of notice does not cure procedural unfairness.
- A termination on grounds of poor performance requires an appraisal policy and a performance improvement plan before dismissal.
Court orders
#- 1.The Claimant is awarded the sum of Kshs 464,538/= being six months' salary as compensation for unfair termination
- 2.The award shall be subject to applicable taxes and applicable statutory deductions
- 3.The award shall attract interest at Court rates from the date of judgment until payment in full
- 4.Prayer for one month's salary in lieu of notice is denied (already paid)
- 5.Prayers for pay disparity, damages for harassment and racial discrimination, and service pay are denied
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (employment claim under the Employment Act); specific enabling provision not cited in the judgment
Relief refused
#One month salary in lieu of notice (Kshs 77,423.00)
Already paid to the Claimant upon termination and not rebutted
Cumulative pay disparity (Kshs 1,509,748.50)
Allegations of pay disparity not specifically proved
Damages for harassment and racial discrimination (Kshs 1,509,748.50)
Allegations of discrimination not substantiated
Service pay (Kshs 122,328)
Claimant was an NSSF contributor and section 35(6)(d) of the Employment Act bars service pay for contributors to a pension scheme absent contrary contractual provision
Costs
Not expressly stated in the operative orders; the Claimant had sought costs of the suit but the judgment's disposition does not record a costs order beyond the compensation award and interest.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In that regard, the Court finds and holds that the respondent did not have a valid and fair reason to terminate the Claimant’s employment.
The fact that the Respondent paid the Claimant one month’s salary in lieu of notice and some leave days does not make the termination lawful where they did not give a reason for termination and follow the laid down procedures.
In conclusion the Court is of the view that the Claimant’s termination was procedurally unfair and unlawful and for no valid reason.
In conclusion the Court awards the claimant the sum of Kshs 464,538/= being six months’ salary as compensation for unfair termination. The award shall be subject to applicable taxes and applicable statutory deductions but shall attract interest at Court rates from the date of judgment until payment in full.
It is so ordered
Issues in the judgment
#Duplicated/garbled text in the framing of the issues ('Aa. aa.', 'WhetherWhetherWhether') indicating a typographical duplication in the judgment
Stray numbering error at the start of the Analysis section ('0I have reviewed...')
The payment figure of Kshs 93,50/= on termination appears to be a typographical error (likely Kshs 93,500/=)
The Claimant pleaded a gross monthly salary of Kshs 77,423/= while testifying his net pay was Kshs 60,000/=; the Respondent's computation of the award (six months at Kshs 77,423 = Kshs 464,538) reflects the gross salary
No express costs order appears in the operative disposition despite costs having been sought
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mori v Mitsumi Computer Garage Ltd (Cause E100 of 2022) [2024] KEELRC 235 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/235/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.