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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 2093 (KLR)

Simba v Portside Freight Terminal Limited (Cause E136 of 2023) [2024] KEELRC 2093 (KLR)

Employment and Labour Relations Court
25 July 2024
MMM. Mbarũ
3,010 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court awarded a manager nearly Ksh. 1 million because her employer fired her without written notice or a hearing.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 2009 and rising from stock control clerk to operations manager, claimed unfair termination of employment without notice, hearing or cause, and sought notice pay, 12 months' compensation, salary arrears, unpaid leave and unremitted statutory deductions. The respondent filed mere denials, asserting gross misconduct, a two-week suspension without pay, a warning letter for unauthorized absence, and ultimate termination for absconding. The court found no notice of termination was issued or filed, no disciplinary process was held, and all four elements of Section 41 of the Employment Act were absent, rendering the termination unlawful and unfair contrary to Sections 35, 41, 43 and 45. Notice pay was awarded at the documented wage of Ksh.79,246, the claimed Ksh.135,948 being unsupported by any variation of the letter of appointment; the ISO role was additional. Compensation of 10 months' gross salary (Ksh.792,460) was awarded for over 16 years of service, factoring in the warning record of 18 February 2023. Leave pay of Ksh.89,948 was awarded as unchallenged. Claims for unremitted NSSF and NHIF dues were rejected as claimable only against the statutory bodies. A certificate of service was ordered under Section 51, and costs were awarded to the claimant, the court noting the respondent's failure to issue a termination letter or certificate, which impeded pre-suit resolution and new employment.

Key legal issues

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01

Unfair and unlawful termination of employment

Holding

Termination was unlawful and unfair for want of due process under Sections 35, 41, 43 and 45 of the Employment Act; no notice of termination was issued or filed

Reasoning

The respondent's response comprised mere denials; no disciplinary proceedings were held, no notice of termination issued, and the warning letter of 18 February 2023 required a written explanation but 'there is nothing after this communication'. The four Section 41 elements were absent, exposing the employer to the claim.

p. 6
02

Notice pay and the applicable wage

Holding

Notice pay awarded at Ksh.79,246, the last documented wage, not the claimed Ksh.135,948

Reasoning

Written appointment letters showed the last wage increase dated 18 June 2013; the June 2017 memo appointing the claimant ISO management representative was an additional role without change to the letter of appointment, so the court declined to find a contractual wage of Ksh.135,948.

p. 6
03

Assessment of compensation under Section 45(5)

Holding

Compensation of 10 months' gross salary (Ksh.792,460) awarded for over 16 years of service

Reasoning

The court considered the length of service (2009–2023), the warning record of 18 February 2023 which the claimant did not answer in writing, the absence of due process, non-payment of terminal dues and the lack of any termination notice to date.

p. 6
04

Unpaid leave

Holding

Leave pay of Ksh.89,948 awarded as the claim was not materially challenged

Reasoning

The respondent's leave forms showed the last approved leave taken was 20–24 September 2021, with no record from October 2021 to February 2023, and the claim of Ksh.89,948 was not challenged in any material way.

p. 6

Legal principles established

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  • An employer bears the legal duty to terminate employment by written notice stating reasons, and even for gross misconduct must take the employee through due process; failure to do so renders termination unlawful
  • The four elements of Section 41 (explanation of grounds, reason for termination, right to a representative, and hearing of representations) must all be discernible for a dismissal procedure to be fair

Court orders

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  1. 1.A declaration that the respondent terminated the claimant's employment unlawfully and unfairly
  2. 2.Compensation awarded at Ksh.792,460
  3. 3.Notice pay Ksh.79,246
  4. 4.Leave pay Ksh.89,948
  5. 5.Certificate of service to be issued under Section 51 of the Employment Act
  6. 6.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment ActSection 41(2)
  • Employment ActSection 44(3) and (4)
  • Employment ActSection 10(6) and (7)
  • Employment ActSections 35, 41, 43 and 45
  • Employment ActSection 45(5)
  • Employment ActSection 51

Cases cited (4)

  • Kenya Union of Domestic, Hotels, Educational Institutions & Hospitals Workers v Mombasa Sports Club
    Cause No. 440 of 2013
  • Donald Odeke v Fidelity Security Limited
    Cause No. 1998 of 2011
  • Pauline Maisy Omung'ala Chesang v Chief Justice and President of The Supreme Court of Kenya & another
    [2020] eKLR
  • Oyombe v Eco Bank Limited
    [2022] KECA 540 (KLR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

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, "Simba v Portside Freight Terminal Limited (Cause E136 of 2023) [2024] KEELRC 2093 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2093/eng@2024-07-25

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