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Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Cause (Nyeri) - instant suit filed 25th August 2023 (no. not stated in judgment)· [2024] KEELRC 2412 (KLR)

Kimathi v Hunjan & 10 others (Cause E027 of 2023) [2024] KEELRC 2412 (KLR)

Employment and Labour Relations Court
4 October 2024
4,538 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, formerly General Manager of Nanyuki Sports Club under a three-year fixed term contract, sued eleven members of the Club's committee seeking a declaration that his summary dismissal was unfair, unpaid salaries of Kshs.360,000 for July to September 2020, salary for the unserved contract period (Kshs.3,450,000), two months' leave in lieu (Kshs.300,000), general damages, up to twelve months' compensation and costs on a higher scale. The parties adopted the evidence tendered in an earlier, struck-out suit (ELRC Cause No.10 of 2020). The respondents defended the dismissal as lawful, for valid reasons and after fair procedure. The court framed two issues: whether the termination was unfair and unlawful, and whether the reliefs were due. It held that gate passes the claimant signed, releasing foodstuffs and other club property without authority, constituted sufficient proof of gross misconduct notwithstanding the absence of an audit report or inventory, and that the disciplinary process - show cause letter, written response, hearing and reasoned dismissal letter - satisfied section 41 of the Employment Act. The unfair termination claim therefore failed. However, the court found that the 40% salary reduction imposed from July 2020 lacked the claimant's consent as required by section 10(5), the burden of proving consent lying on the respondents. Claims for remuneration for the unserved contract and leave in lieu were declined following Elizabeth Wakanyi Kibe v Telkom Kenya Ltd. Judgment was entered for the claimant for Kshs.265,000 in unpaid salary, with costs, interest at court rates from filing, and subject to statutory deductions.

Key legal issues

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01

Whether the reasons for dismissal were valid and fair

Holding

Valid reasons existed: the claimant signed gate passes releasing club property without authority and condoned similar conduct by juniors, amounting to gross misconduct

Reasoning

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.

p. 8
02

Whether a fair procedure was followed before dismissal

Holding

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

Reasoning

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.

p. 9
03

Whether the 40% salary reduction was lawful

Holding

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

Reasoning

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.

p. 9
04

Whether the claimant was entitled to remuneration for the unserved contract period

Holding

No - such claims are not grounded in law or contract

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 1.Judgment for the claimant against the respondents for unpaid salary of Kshs.265,000.00
  2. 2.Costs and interest at court rates from the date of filing the suit
  3. 3.The award is subject to statutory deductions

Authorities

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Legislation

  • Employment Act, 2007section 45(1) & (2)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 44(4)(c), (d) and (g)
  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 49
  • Employment Act, 2007section 10(5)
  • Employment Act, 2007section 19
  • Evidence Actsection 35(4)
  • ELRC Procedure RulesRule 28(3)

Cases cited (8)

  • Cargill Kenya Limited v Wilson Onywoki Nyakeruma
    (2021) eKLR
  • Maxwell Miyawa & 7 Others v JSC
    (2017) eKLR
  • Gilbert Mariera Makori v Equity Bank Limited
    (2016) eKLR
  • Grace Gacheri Muriithi v Kenya Literature Bureau
    (2012) eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Co. Limited
    (2013) eKLR
  • Kennedy Maina Mirera v Barclays Bank of Kenya Limited
    (2018) eKLR
  • Elizabeth Wakanyi Kibe v Telkom Kenya Ltd
    (2014) eKLR
  • Rt. Rev. Silas Njiru & Catholic Diocese of Meru v Andrew Kiruja
    Civil Appeal No.312 of 2004
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)

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, "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.