Kaimenyi v Nemchem International Kenya Limited (Cause E016 of 2024) [2024] KEELRC 1957 (KLR)
The bottom line
#A Kenyan court ruled an employer's unfair dismissal process still cost it notice pay, but the drunk-at-work employee got nothing more.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness in termination under Section 41 of the Employment Act
The termination was procedurally unfair: there was no prior notice of the disciplinary hearing and the claimant was not allowed an employee/representative of his choice
Section 41 requires the employer to explain the grounds of termination, allow the employee to be accompanied by a representative of choice, and hear and consider representations. The disciplinary hearing was held by phone with no prior notice and no opportunity to bring a companion. These statutory motions are mandatory even for gross misconduct, and non-compliance renders the termination unlawful and unfair.
Notice pay where termination was unfair
Notice pay of Ksh.100,000 is due, being the last salary actually earned
The probationary contract lapsed on 12 April 2023 without a confirmation letter. Although Ksh.80,000 was paid during probation, the last payment statement showed a basic salary of Ksh.100,000, which under Section 10(5) of the Employment Act is the due amount. The claim for Ksh.250,000 rested on an unactualised promise not reduced to writing.
Compensation under Section 45(5) of the Employment Act
Zero compensation awarded despite unfair termination, because the claimant's misconduct contributed to the termination
Section 45(5)(b) and (e) require consideration of the employee's conduct and previous warnings. The claimant admitted a self-involving accident linked to intoxication, unchallenged by evidence, and had received a prior warning. Given his contribution to the termination, awarding compensation would reward gross misconduct, so a zero award was justified.
Salary enhancement claim of Ksh.750,000
Claim refused for lack of a written contract enhancing salary beyond Ksh.100,000
The claimant asserted an agreed enhancement to Ksh.250,000 per month, but no written contract evidenced this, and it was premised on achievement of KPIs never attained. The last salary actually paid was Ksh.100,000, which the court took as the contractual amount.
Legal principles established
#- An employer must comply with the mandatory procedural requirements of Section 41 of the Employment Act before termination, even in cases of gross misconduct, failing which the termination is unfair
- Under Section 51 of the Employment Act, a letter of recommendation is optional while a Certificate of Service is mandatory
Court orders
#- 1.Judgment entered for the Claimant against the Respondent
- 2.Notice pay of Ksh.100,000 awarded to the claimant
- 3.Each party to pay its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Section 41, 45, 10(5), 51 of the Employment Act applied); no constitutional provision expressly invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaimenyi v Nemchem International Kenya Limited (Cause E016 of 2024) [2024] KEELRC 1957 (KLR)", Case Analysis (2024). Cause No E016 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1957/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.