Kivisi v Performers Rights Society of Kenya (PRISK) (Cause 58 of 2019) [2024] KEELRC 1316 (KLR)
The bottom line
#A Kenyan court ruled that WhatsApp messages to a staff group count as proper notice to an employer, making the dismissal unfair and awarding millions in compensation.
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 of employment was unfair and unlawful
- 2.Whether the Claimant is entitled to the reliefs sought
Key legal issues
#Whether the termination was substantively justified (valid and fair reason)
The reasons advanced by the Respondent (absconding duty and failing to follow office procedures) were not valid and fair; the Respondent knew of the Claimant's whereabouts through WhatsApp communication and the WIPO invitation
The Claimant communicated his illness and attendance at the WIPO Namibia training through the staff WhatsApp group, which the HR read. The court took judicial notice of digital communication. The 30-day written special leave requirement was inapplicable given the short invitation and the Claimant's sick leave running to 18th November 2017. The Respondent made no effort to contact the Claimant about his absence, and the warning letter relied on related to different accusations.
Whether the termination was procedurally fair under Section 41 of the Employment Act
The termination was procedurally flawed: the disciplinary hearing was a sham, conducted by the HR against whom the Claimant had raised a grievance, with insufficient notice of one day and no minutes produced
The HR who had been the subject of the Claimant's grievance chaired the disciplinary hearing, creating bias. The Claimant was invited on 13th December 2017 to a hearing on 14th December 2017, too short notice to bring a companion. No minutes of the disciplinary meeting were produced. The Human Resource Policy required disciplinary action against senior staff by the board, not the HR, and did not permit summary dismissal of senior staff.
Whether the Claimant was entitled to compensation and lost salary under Section 49 of the Employment Act
The Claimant was awarded 8 months' gross salary as compensation for unfair termination, and lost salary for the remainder of his fixed-term contract
Having found the termination unfair, the court exercised its discretion under Section 49, taking into account the Respondent's conduct and the Claimant's 5 years of service, awarding 8 months' compensation. The contract being for a fixed three-year period, the Claimant was held entitled to the remainder of the contract. Service pay was refused as the salary attracted NSSF deductions under Section 35(6).
Legal principles established
#- An employer bears the burden of proving and justifying the grounds for termination of employment
- It is good practice for an employer to take the initiative of contacting an employee who absconds work to find out the reason for the failure to report
- An employee is entitled to adequate notice of a show cause letter and of a disciplinary hearing, with clear minutes of the proceedings
Court orders
#- 1.8 months' compensation for unlawful termination of Kshs 672,000/=
- 2.Lost salary (19 months) of Kshs 1,009,200/=
- 3.Costs and interests of the suit to the Claimant
- 4.The award shall be subject to taxes and statutory deductions but shall attract interest at Court rates from date of judgment until payment in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 41, 43, 44, 45, 47(5), 49 and 35(6))
Relief refused
#Service pay for each year worked (Kshs 210,250/=)
The Claimant's salary was subject to statutory deductions including NSSF, falling within the exceptions under section 35(6) of the Employment Act
Pension contribution for the remainder of the contract (Kshs 95,874/=)
Not awarded in the final orders despite being pleaded
Costs
The Claimant's claim is allowed with costs to the Claimant, plus interest at Court rates from the date of judgment until payment in full
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 conclusion the Claimant’s claim is hereby allowed with costs as follows;
8 Months Compensation for unlawful termination…………………………Kshs 672,000/=
The award shall be subject to taxes and statutory deductions but shall attract interest at Court rates from date of judgment until payment in full.
The Claimant is not entitled to the service pay.
The court takes judicial notice digital technology as a means of communication.
Issues in the judgment
#Discrepancy between the stated entitlement (remainder of a 19-month contract) and the amount awarded: Kshs 1,009,200/= is 12 months' salary at Kshs 84,100, whereas 19 months would be Kshs 1,597,900/= as pleaded
Claimant's admission to the disciplinary hearing is recorded with inconsistent dates: '14th December 2018' in the determination versus the pleaded and evidenced hearing date of 14th December, 2017
The judgment refers to the discharge date as '14th November,2014' when the context indicates 2017
The court found the special leave 30-day notice inapplicable due to the short WIPO invitation, yet the invitation (email dated 17th October, 2017) preceded the training by over a month, which is inconsistent with the finding
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kivisi v Performers Rights Society of Kenya (PRISK) (Cause 58 of 2019) [2024] KEELRC 1316 (KLR)", Case Analysis (2024). ELRC Cause 58 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1316/eng@2024-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.