Arisa v Kipkebe Limited (Employment and Labour Relations Cause E005 of 2023) [2024] KEELRC 1232 (KLR)
The bottom line
#Kenya's Employment Court awarded an assistant estate manager 8 months' pay for unfair termination, ruling a disciplinary process cannot save a dismissal lacking a valid reason.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
The reasons assigned were not valid; the claimant was not wholly to blame for the loss as transport was outsourced and there were intervening circumstances.
The court found transport of green leaf was outsourced and the claimant's duty was only to coordinate. He obtained an alternative vehicle and liaised with supervisors; the general manager advised him to retain the consignment till the next day. Other factors - time, distance, lapse in transport - contributed to the loss, so negligence was not established against him.
Fairness of termination under section 45(2) Employment Act
Though a disciplinary process under section 41 was followed, there being no valid reason, the termination was unfair under section 45(2).
The claimant went through a disciplinary process as per section 41, but procedural compliance alone cannot save a termination without valid reason. Section 45(2) requires the employer to prove both validity of reason and fair procedure; failure on the reason limb rendered the termination unfair.
Limitation of overtime claim
Overtime pay is a continuing injury under section 90 of the Employment Act and is not time barred.
Relying on the Court of Appeal decision in The German School Society v Helga Ohany, the court adopted the reasoning that unpaid wages constitute a continuing wrong giving rise to a recurring cause of action each month, so a 12-month limitation period runs from cessation of the injury, not from each month of non-payment.
Proof of overtime entitlement
Though not time barred and admittedly worked, the overtime claim failed for want of particulars and proof.
The claimant pleaded a global figure of Kshs 1,678,752 but failed to set out particulars of the overtime claimed until submissions, which were not supported by evidence. A blanket statement of working hours without days and hours specified could not sustain the quantum claimed.
Legal principles established
#- A termination is unfair where the employer fails to prove both a valid reason and fair procedure
- A claim for overtime pay constitutes a continuing injury under section 90 of the Employment Act and is not time barred
- Requiring managers to work overtime without pay amounts to servitude
Court orders
#- 1.Compensation of 8 months pay for the unlawful termination = 8 x 60,975 = 487,800/=
- 2.1 month's salary in lieu of notice = 60,975/=, less statutory deductions
- 3.Issuance of a Certificate of Service
- 4.Costs of this suit plus interest at court rates with effect from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the Constitution (Articles 23, 27, 28, 41, 47 invoked in the claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arisa v Kipkebe Limited (Employment and Labour Relations Cause E005 of 2023) [2024] KEELRC 1232 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1232/eng@2024-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.