Lenaipa v Namunyak Wildlife Conservation Ltd (Employment and Labour Relations Cause E029 of 2021) [2024] KEELRC 542 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was unfair and unlawful
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.
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.
Whether the Claimant was entitled to the reliefs sought
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.
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.
Legal principles established
#- 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
#- 1.Declaration that the Claimant's contract of employment was unfairly, wrongfully and unlawfully terminated
- 2.Three months' salary in lieu of notice of Kshs. 809,925.00
- 3.Compensation of three months' salary for the unfair termination of Kshs. 809,925.00
- 4.Salary for July 2021 of Kshs. 89,991.70
- 5.Leave pay of Kshs. 224,979.20
- 6.Total award of Kshs. 1,934,820.90, payable subject to statutory deductions
- 7.Costs of the suit to the Claimant with interest at court rate from the date of the judgment
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment Act (termination of employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.