Thumbi v Everest Enterprises Limited (Appeal E020 of 2023) [2024] KEELRC 2196 (KLR)
The bottom line
#Kenya's ELRC in Nyeri held that giving an employee one month's notice is not enough — employers must also explain reasons and hear the employee before termination.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair and unlawful
The termination was unfair and unlawful; the employer pleaded a reason (competing business) that was never explained to the appellant as required by section 41, and tendered no evidence to discharge its burden under sections 43 and 45.
The termination letter gave one month's notice but cited no reason. The respondent's pleading alleged the appellant operated a competing company, amounting to an admission that the reason was not explained before the decision. Despite filing a defence and documents, the respondent tendered no evidence at trial, so it failed to prove valid reason and fair procedure. Notice alone does not absolve the duty to hear the employee.
First appellate court's duty
The court is obliged to re-evaluate the evidence and reach its own conclusions while making allowance for not having seen the witnesses, per Selle v Associated Motor Boat Company Ltd.
As a first appeal, the mandate is to subject the whole evidence to fresh evaluation and draw independent conclusions, bearing in mind the court neither saw nor heard the witnesses, and not being bound by the trial court's factual findings where it misdirected itself.
Reliefs payable
The appellant was awarded four months' salary as compensation, withheld salary of Kshs.510,000, leave of Kshs.55,416.66 and service pay of Kshs.210,000; notice pay, HELB deductions and salary arrears were refused.
Compensation was assessed at four months given no offence was proved and six years of service. Withheld salary, leave and service pay were admitted in the respondent's computation letter and agreement, and the respondent led no evidence of NSSF registration to defeat service pay. Sums admitted as paid were excluded.
Legal principles established
#- Even where an employer serves a termination notice or pays salary in lieu, the employer remains under a legal duty to accord the employee a hearing under section 41 of the Employment Act.
- Failure by a respondent to adduce evidence to prove its defence renders the defence futile and the employer fails to discharge its burden of proving substantive and procedural fairness.
Court orders
#- 1.A declaration that the termination of the appellant's employment by the respondent was unlawful and unfair.
- 2.Compensation for unfair termination of Kshs.280,000.00
- 3.Withheld salary of Kshs.510,000.00
- 4.Leave of Kshs.55,416.66
- 5.Service pay of Kshs.210,000.00 (total Kshs.1,055,416.66)
- 6.The award is subject to statutory deductions.
- 7.The Appellant is awarded costs of the appeal and court below.
- 8.The Appellant is awarded interest at court rates from the date of the judgment.
- On appeal from
- Magistrates' Court
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court suit (ELRC Procedure Rules referenced); no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thumbi v Everest Enterprises Limited (Appeal E020 of 2023) [2024] KEELRC 2196 (KLR)", Case Analysis (2024). Appeal No E020 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2196/eng@2024-09-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.