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ELRCPartially Allowed· [2024] KEELRC 542 (KLR)

Lenaipa v Namunyak Wildlife Conservation Ltd (Employment and Labour Relations Cause E029 of 2021) [2024] KEELRC 542 (KLR)

Employment and Labour Relations Court
8 March 2024
4,772 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that paying an employee in lieu of notice doesn't excuse employers from giving a fair hearing before termination.

What this practically means

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Executive summary

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The Claimant, Sanctuary Manager at Reteti Elephant Sanctuary under a five-year contract running from 1st August 2018, was suspended verbally on 12th May 2021 to pave way for investigations, and his employment was terminated by a letter dated 10th July 2021 citing loss of confidence and inability to provide leadership. He sued for unfair termination. The Respondent defended the termination as lawful, invoking clause 10 of the contract permitting termination on three months' notice or payment in lieu, on grounds of the Claimant's incompatibility with the community, staff and partners. The Court framed two issues: whether the termination was unfair and unlawful, and whether the Claimant was entitled to the reliefs sought. Applying sections 41, 43 and 45 of the Employment Act and the Court of Appeal's decision in Kenfreight (EA) Limited v Benson K Nguti, the court held that payment in lieu of notice did not excuse the employer's failure to accord the Claimant a hearing; the community meeting that resolved to dismiss him was held in his absence, and no investigations preceded the termination. The termination was therefore unfair and unlawful for want of procedural fairness. On remedies, the court applied OlPejeta Ranching Limited v David Wanjau Muhoro and awarded three months' salary in lieu of notice and three months' salary as compensation, considering the Claimant's three years of service, mitigation, and his contribution to the termination through misconduct. Claims for July salary and leave days were allowed; service pay was refused because the Claimant was an NSSF member. Judgment of Kshs. 1,934,820.90 was entered for the Claimant, with costs and interest, subject to statutory deductions. The judgment was delivered virtually at Nyeri on 8th March 2024.

Key legal issues

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01

Whether the termination of the Claimant's employment was unfair and unlawful

Holding

The termination was unfair and unlawful for want of procedural fairness: the Claimant was never given a show cause letter, a hearing, or a chance to respond to the allegations, and the community meeting that resolved on his dismissal was held in his absence.

Reasoning

Under sections 45 and 41 of the Employment Act, an employer must have a valid and fair reason and follow a fair procedure, including explaining the grounds to the employee and hearing representations. Although the Respondent invoked clause 10 of the contract by offering three months' salary in lieu of notice, the Claimant's contract was terminated on grounds relating to his performance and relationships with the Board, staff and partners, and he was suspended to pave way for investigations that never took place before termination. The Court of Appeal's decision in Kenfreight (EA) Limited v Benson K Nguti bound the court: the employee was entitled to be heard regardless of payment in lieu of notice.

p. 9
02

Whether the Claimant was entitled to the reliefs sought

Holding

The Claimant was granted the declaration, three months' salary in lieu of notice, three months' salary as compensation for unfair termination, salary for July 2021 and unpaid leave pay; service pay was refused due to NSSF membership; the certificate of service was to issue upon clearance.

Reasoning

Guided by OlPejeta Ranching Limited v David Wanjau Muhoro, the court exercised discretion on sound judicial principles: it considered the three years worked out of a five-year contract, the claimant's reasonable expectation of two further years, his mitigation by securing other employment, and his contribution to the termination through misconduct highlighted in the termination letter, warranting three months rather than the maximum twelve months' compensation. The claims for July salary and leave days were admitted or unrebutted.

p. 9

Legal principles established

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  • Payment in lieu of notice does not exempt an employer from the requirement of according the employee a fair hearing before termination.
  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness.

Court orders

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  1. 1.Declaration that the Claimant's contract of employment was unfairly, wrongfully and unlawfully terminated
  2. 2.Three months' salary in lieu of notice of Kshs. 809,925.00
  3. 3.Compensation of three months' salary for the unfair termination of Kshs. 809,925.00
  4. 4.Salary for July 2021 of Kshs. 89,991.70
  5. 5.Leave pay of Kshs. 224,979.20
  6. 6.Total award of Kshs. 1,934,820.90, payable subject to statutory deductions
  7. 7.Costs of the suit to the Claimant with interest at court rate from the date of the judgment

Authorities

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Legislation

  • Employment Actsections 4(b) (as per Fair Administrative Actions Act reference), 35(6), 36, 41, 43, 44(1), 44(2), 44(3), 44(4), 45(1 & 2), 47(5), 49, 50
  • Fair Administrative Actions Actsection 4(b)
  • ELRC Procedure RulesRule 28(3)

Cases cited (13)

  • Dairus Kiseu Mwamburi v Cooperative Bank of Kenya Limited
    [2021] eKLR
  • Chairman Board of Directors (National Water Conservation and Pipeline Corporation) v Meshack M. Saboke & 2 others
    [2019] eKLR
  • Galgalo Jarso Jillo v Agricultural Finance Corporation
    [2021] eKLR
  • Standard Group Limited v Jenny Luesby
    [2018] eKLR
  • Janet Nyandiko v Kenya Commercial Bank Limited
    [2014] eKLR
  • Kiptum Nyaoke v Kenya Post Office Savings Bank
    [2022] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Osota Paul Osiemo v Intersecurity Services limited
    [2021] eKLR
  • Kenfreight (EA) Limited v Benson K Nguti
    [2016] eKLR
  • George Musamali v G4S Security Services Kenya Ltd
    [2016] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • OlPejeta Ranching Limited vs. David Wanjau Muhoro
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment Act (termination of employment claim)

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, "Lenaipa v Namunyak Wildlife Conservation Ltd (Employment and Labour Relations Cause E029 of 2021) [2024] KEELRC 542 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/542/eng@2024-03-08

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