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ELRCPartially AllowedCause No E016 of 2024· [2024] KEELRC 1957 (KLR)

Kaimenyi v Nemchem International Kenya Limited (Cause E016 of 2024) [2024] KEELRC 1957 (KLR)

Employment and Labour Relations Court
25 July 2024
2,776 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed on 13 January 2023 as a sales account manager at the respondent's Mombasa branch, alleged that his employment was terminated on 19 September 2023 by seven days' notice without a hearing, without terminal dues, and without a Certificate of Service. He sought underpayment of Ksh.750,000, twelve months' compensation, notice pay of Ksh.250,000, and damages for constitutional violations, breach of privacy and reputational damage. The respondent maintained that termination followed a disciplinary process and was justified by poor performance against KPIs and gross misconduct, including intoxication, absence, and misappropriation of office equipment funds. The court held that the procedural requirements of Section 41 of the Employment Act are mandatory: the disciplinary hearing was conducted by phone without prior notice and without allowing the claimant a companion of his choice, rendering the termination unfair. However, applying Sections 45(5)(b) and (e), the claimant's conduct - including an admission of an accident while intoxicated and a prior warning - contributed to the termination, so a zero award of compensation was justified to avoid rewarding gross misconduct. Notice pay of Ksh.100,000 was awarded as the last salary earned under Section 10(5); the underpayment and Ksh.250,000 notice claims failed for lack of written contractual enhancement; constitutional and privacy damages were refused as subsumed in the employment relationship; and a letter of recommendation was held optional under Section 51. Judgment was entered for the claimant on notice pay only, with each party bearing its own costs.

Key legal issues

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01

Procedural fairness in termination under Section 41 of the Employment Act

Holding

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

Reasoning

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.

p. 5
02

Notice pay where termination was unfair

Holding

Notice pay of Ksh.100,000 is due, being the last salary actually earned

Reasoning

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.

p. 5
03

Compensation under Section 45(5) of the Employment Act

Holding

Zero compensation awarded despite unfair termination, because the claimant's misconduct contributed to the termination

Reasoning

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.

p. 6
04

Salary enhancement claim of Ksh.750,000

Holding

Claim refused for lack of a written contract enhancing salary beyond Ksh.100,000

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Judgment entered for the Claimant against the Respondent
  2. 2.Notice pay of Ksh.100,000 awarded to the claimant
  3. 3.Each party to pay its own costs

Authorities

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Legislation

  • Employment ActSection 41 (including s.41(2))
  • Employment ActSection 44(3) and (4)
  • Employment ActSection 10(5)
  • Employment ActSection 45 (including s.45(5)(a), (b) and (e))
  • Employment ActSection 51

Cases cited (5)

  • Oyombe v Eco Bank Limited
    (Civil Appeal 185 of 2017) [2022] KECA
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Gerald M. Ochieng v Copyright Board of Kenya & another
    [2016] eKLR
  • Grace Atieno Onyango v St. Hannah's Preparatory School Limited
    [2015] eKLR
  • Lilian W. Mbogo-Omollo v Cabinet Secretary Ministry of Public Service & Gender & another
    [2020] eKLR - Petition 86 of 2020
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

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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, "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.