Arora v Board of Directors African Cotton & Textile Industries Federation (Cause 970 of 2015) [2024] KEELRC 2497 (KLR)
The bottom line
#Kenya's Employment Court ruled a CEO was unfairly dismissed because his employer skipped the mandatory fair hearing required before termination, awarding millions in compensation.
What this practically means
#Executive summary
#Key legal issues
#Fair procedure under Section 41 Employment Act
No notice commensurate with Section 41 and no record of a disciplinary hearing where the claimant could defend himself; termination unlawful and unfair
The court found notices allowing responses to allegations but no notice satisfying Section 41 and no evidence of a disciplinary hearing conducted. The respondent called no witness, leaving the claimant's claims unchallenged. Mandatory Section 41 not adhered to results in unfair termination.
Termination for poor performance
Allegation of poor performance unsupported by evidence and unfair
The respondent alleged non-performance from 1st March 2013 but terminated on 1st April 2015, having two full years to assess and address capabilities. Termination over alleged poor performance without evidence or material support was held procedurally and substantively unfair, following Mwilo v Absa Bank.
Respondent's counter-claim
Counter-claim dismissed as unproven
The respondent alleged misappropriation of $37,884.93 and unilateral salary increase but called no witness. The claims were left bare and unsupported by evidence, so the counter-claim failed entirely.
Leave entitlement under Section 28
Claim for 5 leave days justified as respondent failed to produce work records
Leave is a statutory right under Section 28 of the Employment Act; the employer bears the duty to submit work records. None was submitted, so the claim of Ksh.210,240 was allowed.
Legal principles established
#- Section 41 of the Employment Act is mandatory; an employee must be accorded fair hearing and procedure before summary dismissal
- Failure to adhere to Section 41 renders a termination unlawful and unfair
Court orders
#- 1.Judgment entered for the claimant against the respondent for 3 months' notice pay Ksh.2,365,200
- 2.Salary outstanding for February and March Ksh.1,576,800
- 3.Unremitted December 2014 and January 2015 contributions to Kimisitu Sacco totalling Ksh.100,000
- 4.Payment to Kenindia Assurance of staff/company provident fund contribution for December 2014 and January 2015 of Ksh.315,360
- 5.5 days leave pay of Ksh.210,240
- 6.General damages for unfair termination of Ksh.3,942,000 (5 months' gross salary)
- 7.Claimant awarded 50% of costs
- Jurisdiction invoked
- Employment and Labour Relations Court original jurisdiction under the Employment Act (Sections 41, 44, 28 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arora v Board of Directors African Cotton & Textile Industries Federation (Cause 970 of 2015) [2024] KEELRC 2497 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2497/eng@2024-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.