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ELRCPartially AllowedCause No E010 of 2023· [2024] KEELRC 2088 (KLR)

Jin v Kwale International Sugar Company Limited (Cause E010 of 2023) [2024] KEELRC 2088 (KLR)

Employment and Labour Relations Court
4 July 2024
MMM. Mbarũ
3,676 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, offered employment as an accountant by letter dated 9 October 2020 effective 2 January 2021 at a gross salary of Ksh.177,852, sued the respondent alleging he was never issued a formal contract or job description, was not allocated housing, received no itemised pay statements, and worked amid duplication of roles. By notice dated 30 September 2022 his employment was terminated for unsatisfactory performance and unauthorized absence, cited as gross misconduct under Section 44(4) of the Employment Act. After he appealed on 6 October 2022, the respondent invited him to a disciplinary hearing held on 24 November 2022, after which he was summarily dismissed. The court framed two issues: whether there was unfair termination and whether remedies should issue. Holding that Section 41's mandatory requirements of explanation, notice and hearing must precede the termination decision, the court found the post-termination disciplinary process an abuse of process incapable of justifying summary dismissal, and declared the termination unlawful and unfair. The court awarded notice pay of Ksh.177,852 (rejecting the claimed USD 850 component) and compensation of four months' gross salary (Ksh.711,408), and ordered a certificate of service under Section 51 plus costs. Claims for withheld salaries, house allowance, transport refunds, service pay, NSSF/NHIF refunds and leave pay were refused, as dues were paid or not contractually or legally due. Judgment was delivered in open court at Mombasa on 4 July 2024 by M. Mbarũ, Judge.

Key legal issues

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01

Whether the termination was lawful and fair

Holding

Termination was unlawful and unfair because the mandatory hearing under Section 41 preceded the termination decision was not held; the post-termination disciplinary process could not validate it

Reasoning

The respondent terminated employment by notice dated 30 September 2022 before any hearing. Only upon appeal was a disciplinary hearing convened on 24 November 2022 leading to summary dismissal. Section 41 requires explanation, notification and hearing before the decision to terminate. Post-decision hearing is an abuse of process and cannot justify dismissal.

p. 6
02

What remedies flow from the unfair termination

Holding

Notice pay of Ksh.177,852 and compensation equivalent to 4 months' gross salary (Ksh.711,408) awarded; other heads refused

Reasoning

Claimant worked under two years; compensation of 4 months' salary found appropriate for the lapse in fair procedure and substantive fairness. Notice pay is due as summary dismissal was unjustified; salary is taken as Ksh.177,852 per the letter of offer since the USD component was not established.

p. 7
03

Certificate of service

Holding

Certificate of service must be issued as none was filed despite clearance

Reasoning

The claimant cleared all departments in December 2022 but no certificate of service was produced confirming compliance with Section 51 of the Act; this compounded unfair labour practices justifying costs.

p. 7

Legal principles established

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  • Section 41 of the Employment Act sets the minimum threshold of a fair procedure before summary dismissal, requiring explanation, notice and hearing before the decision to terminate
  • An employer cannot cure a defective termination by holding a disciplinary hearing on appeal after the decision to terminate has been made

Court orders

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  1. 1.a declaration that employment was terminated unlawfully and unfairly
  2. 2.compensation Ksh.711,408
  3. 3.notice Ksh.177,852
  4. 4.certificate of Service to be issued under Section 51 of the Employment Act, 2007 provisions
  5. 5.Costs of the suit

Authorities

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Legislation

  • Employment ActSection 31
  • Employment ActSection 20
  • Employment ActSection 41(1) and 41(2)
  • Employment ActSection 42(1) and 42(2)
  • Employment ActSection 44(3) and 44(4)
  • Employment ActSection 45(5)(a)
  • Employment ActSection 35(5) and (6)
  • Employment Act, 2007Section 51

Cases cited (2)

  • Oyombe v Eco Bank Limited
    (Civil Appeal 185 of 2017) [2022] KECA
  • Loice Otieno v Kenya Commercial Bank Limited
    Cause No. 1050 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Jin v Kwale International Sugar Company Limited (Cause E010 of 2023) [2024] KEELRC 2088 (KLR)", Case Analysis (2024). Cause No E010 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2088/eng@2024-07-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.