Kimathi v Hunjan & 10 others (Cause E027 of 2023) [2024] KEELRC 2412 (KLR)
The bottom line
#The court upheld a Kenyan club manager's dismissal for misconduct but ordered the employer to pay over KShs 265,000 for cutting his salary without his consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the reasons for dismissal were valid and fair
Valid reasons existed: the claimant signed gate passes releasing club property without authority and condoned similar conduct by juniors, amounting to gross misconduct
Although audited reports and inventory would have been relevant, the gate passes produced were sufficient proof that the claimant gave out foodstuffs without authority. The claimant bore the burden of proving he lawfully gave out the items and did not discharge it. His wide contractual powers had to be exercised lawfully and within his job description.
Whether a fair procedure was followed before dismissal
Yes - show cause letter, written response, disciplinary hearing before the committee, deliberation and a written dismissal letter complied with section 41 of the Employment Act
The minutes of the disciplinary hearing of 26th August 2020 showed the claimant aired his defence and responded to questions; they did not support his allegation that he was asked to resign. The committee considered his representations before resolving to dismiss and the decision was communicated in writing.
Whether the 40% salary reduction was lawful
No - there was no evidence of the claimant's attendance or consent to the salary cut, and the proposal came from a committee member, not the claimant
The minutes of 21st May 2020 were not signed by the claimant as secretary and were never confirmed in a subsequent meeting. Even so, they showed the pay-cut proposal was made by Mr Sohan Aggarwal. A variation of contractual terms required the claimant's consent under section 10(5) of the Employment Act, which the respondents failed to prove.
Whether the claimant was entitled to remuneration for the unserved contract period
No - such claims are not grounded in law or contract
The court adopted the Court of Appeal's position in Elizabeth Wakanyi Kibe v Telkom Kenya Ltd that expected remuneration for the unserved period of a contract is not payable, distinguishing a decision made under the repealed Employment Act.
Legal principles established
#- A variation of an employee's contractual terms, such as a salary reduction, requires the employee's consent; the burden of proving such consent lies on the employer.
- An employer must prove both a valid and fair reason and a fair procedure for a termination to be upheld under section 45 of the Employment Act.
Court orders
#- 1.Judgment for the claimant against the respondents for unpaid salary of Kshs.265,000.00
- 2.Costs and interest at court rates from the date of filing the suit
- 3.The award is subject to statutory deductions
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimathi v Hunjan & 10 others (Cause E027 of 2023) [2024] KEELRC 2412 (KLR)", Case Analysis (2024). ELRC Cause (Nyeri) - instant suit filed 25th August 2023 (no. not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2412/eng@2024-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.