Kosgey v Konyipad Kenya Limited (Cause 1213 of 2018) [2024] KEELRC 2574 (KLR)
The bottom line
#A Kenyan court ruled that an employer who gives no reason and no evidence at the hearing loses automatically—the dismissal was unfair, and the worker was awarded over Kshs 880,000 plus costs and interest.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant's employment was unfairly terminated
Yes - the dismissal was both procedurally and substantively unfair
The Claimant discharged her burden under section 47(5) by prima facie showing non-conformity with sections 41, 43 and 45. The Respondent, though it filed a statement of response, adduced no evidence at the hearing. It therefore failed to prove the reasons for termination, their validity, or adherence to procedural fairness under section 41. The Claimant was also dismissed without the notice required by section 35, amounting to summary dismissal that was unfair both substantively and procedurally.
Whether the Respondent was bound by its representation to pay the Claimant's notice in lieu to her former employer and the gratuity she forfeited
Yes - the Respondent was ordered to compensate both sums
An email of 14th March 2018 from Mr Ahmed Egeh on behalf of the Respondent undertook to pay a lump sum to end the Claimant's contract with her then employer. The Respondent adduced no evidence denying the representation or proving it compensated her. The court found it was the parties' intention at contract formation that the Respondent would pay the former employer three months' notice, and that compensation was due for the forfeited gratuity.
What compensatory relief was appropriate under section 49(1)(c) of the Employment Act
Six months' gross salary (Kshs 420,000) rather than the claimed twelve months
Although section 49(1)(c) permits up to twelve months' gross salary, the power is discretionary. The court considered that the Claimant left secure employment prematurely, was dismissed within a month, the Respondent failed to honour representations amounting to an unfair labour practice, and the Claimant did not contribute to her dismissal. On these facts, six months' gross salary was awarded.
Legal principles established
#- A statement of response not supported by evidence at hearing has no evidential value
- An employee claiming unfair termination bears the initial burden under section 47(5) of the Employment Act, after which the evidential burden shifts to the employer
- An employer who produces no evidence of the reasons for termination fails to discharge the legal burden and the termination is deemed unfair
Court orders
#- 1.A declaration that the summary dismissal of the Claimant was unfair
- 2.Salary for days worked before the dismissal, Kshs 37,692
- 3.Salary in lieu of notice, Kshs 70,000
- 4.The sum deducted from her dues by the former employer, Kshs 97,074
- 5.Gratuity sum payable by the former employer but forfeited by reason of her early exit, Kshs 256,275
- 6.Compensation under section 49(1)(c) of the Employment Act, six months' gross salary, Kshs 420,000
- 7.Interest on the sums awarded at court rates from the date of judgment until full payment
- 8.Costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, including sections 35, 41, 43, 45, 47(5) and 49(1)(c)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kosgey v Konyipad Kenya Limited (Cause 1213 of 2018) [2024] KEELRC 2574 (KLR)", Case Analysis (2024). Cause No 1213 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2574/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.