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ELRCPartially AllowedNot stated in the judgment excerpt (Memorandum of Appeal dated December 21, 2023)· [2024] KEELRC 2427 (KLR)

Afrimac Nut Company Limited v Kamande (Employment and Labour Relations Appeal E025 of 2023) [2024] KEELRC 2427 (KLR)

Employment and Labour Relations Court
4 October 2024
OMOnesmus N Makau
3,008 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court confirmed that firing an employee for refusing to resign is unfair, but struck out severance pay because redundancy was never actually proved.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Nyeri against a trial magistrate's judgment awarding a former HR employee Kshs 401,745 comprising salary in lieu of notice, severance pay and maximum compensation for unfair termination. The employer appealed, contending the respondent absconded duty, that constructive dismissal and redundancy were not pleaded or proved, and that the awards of severance pay and 12 months' compensation were unwarranted. On re-evaluation of the evidence, Makau J found the respondent's account more credible: she was asked to write a resignation letter after her position was allegedly declared redundant, and when she refused she was told not to report to work. No show cause letter was issued despite the absconding allegation, and no disciplinary hearing was conducted. The court held the verbal dismissal was without valid reason or fair procedure, hence unfair under sections 41 and 45 of the Employment Act. The trial court's award of 12 months' compensation was left undisturbed as it was founded on relevant factors under section 49(4). However, the severance pay award of Kshs 53,566 was set aside because the termination was not by redundancy and the award lacked evidentiary support. The appeal was partially allowed, the lower court judgment varied accordingly, and each party ordered to bear its own costs in the appeal.

Key legal issues

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01

Whether the respondent absconded duty or was unfairly dismissed

Holding

The respondent did not abscond; she was verbally dismissed on 3rd February 2023 after refusing to write a resignation letter, and the dismissal was unfair

Reasoning

The respondent's testimony carried more weight given the parties' conduct. Had she absconded, the employer would have stated the date and conducted her. No show cause letter was issued, as required where absconding is alleged. The reason for dismissal (refusal to resign) was not valid, and no disciplinary hearing was accorded under section 41, making the termination unfair under section 45 of the Employment Act.

p. 5
02

Whether the trial court's awards should be disturbed

Holding

The 12 months' compensation and salary in lieu of notice stand, but the severance pay award is set aside as redundancy was not proved

Reasoning

The trial court took into account relevant factors under section 49(4) of the Employment Act, so the appellate court would not interfere with the compensatory award. However, since the termination was not by redundancy but by refusal to resign, the severance pay award was unsupported by evidence and had to be set aside.

p. 6

Legal principles established

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  • Dismissal on account of absconding must be preceded by evidence of reasonable attempts to contact the employee and issuance of a show cause letter
  • Termination of employment is unfair and unlawful if not grounded on a valid reason or done in accordance with fair procedure
  • An appellate court will not interfere with a discretionary award unless a relevant factor was ignored or irrelevant factor considered, resulting in a manifestly excessive or inadequate quantum

Court orders

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  1. 1.Appeal partially allowed
  2. 2.Award of severance pay of Kshs.53,566 set aside
  3. 3.Rest of the damages awarded in the impugned judgment remains unchanged
  4. 4.Each party shall bear own costs in the appeal

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSection 40
  • Employment ActSections 45(1) and (2), 45(2)(b)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 49(1), 49(4)
  • Employment Act, 2007Section 35(1)(c)
  • Employment Act, 2007Sections 42(1), 44(3) and (4)
  • ELRC Procedure RulesRule 28(3)

Cases cited (10)

  • Godfrey Allan Tolo v Tobias O. Otieno & another
    (2022) eKLR
  • Centre for African Family Studies (CAFS) v Jonathan Spangler
    (2019) eKLR
  • Gas Kenya Ltd v Odhiambo
    (Appeal E006 of 2022) (2022) KEELRC 3930 (KLR) (22 September 2022)
  • Boniface Francis Mwangi v BOM Iyego Secondary School
    (2019) eKLR
  • Joseph Aleper & Another v Lodwar Water and Sanitation Company Limited
    (2015) eKLR
  • Jane Samba Mukala v Ol Tukai Lodge Limited
    (2010) LLR 255 (ICK) (September 2013)
  • Selle v Associated Motor Boat Company Ltd
    (1968) EA 123
  • Joseph Nzioka v Smart Coatings Limited
    (2017) eKLR
  • Pius Machafu Isindu case
  • Kenfreight E.A Limited case
On appeal from
Magistrates' Court (ELRC subordinate court)
Jurisdiction invoked
First appellate jurisdiction over an appeal from the trial magistrates' court (Memorandum of Appeal dated December 21, 2023)

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, "Afrimac Nut Company Limited v Kamande (Employment and Labour Relations Appeal E025 of 2023) [2024] KEELRC 2427 (KLR)", Case Analysis (2024). Not stated in the judgment excerpt (Memorandum of Appeal dated December 21, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2427/eng@2024-10-04

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