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ELRCPartially AllowedCause No 1213 of 2018· [2024] KEELRC 2574 (KLR)

Kosgey v Konyipad Kenya Limited (Cause 1213 of 2018) [2024] KEELRC 2574 (KLR)

Employment and Labour Relations Court
18 October 2024
2,342 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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In a claim filed on 13th July 2018, the Claimant sued the Respondent for unpaid salary, notice pay, monies owed to her former employer (Kenyatta University) in lieu of notice, forfeited gratuity, and damages for wrongful dismissal. She was employed by the Respondent on 19th March 2018 as a Senior Tender and Procurement Officer and summarily dismissed verbally on 10th April 2018 by the Respondent's directors without reason or a disciplinary hearing. The Respondent filed a statement of response but did not attend the hearing or adduce evidence; the court held that such a statement has no evidential value. The court framed two issues: whether the employment was unfairly terminated, and whether the Claimant was entitled to the reliefs sought. Applying sections 41, 43, 45 and 47(5) of the Employment Act, the court found the Claimant discharged her initial burden and the Respondent failed to prove the reasons for termination, their validity, or procedural fairness; the dismissal without notice under section 35 was both procedurally and substantively unfair. On reliefs, the court awarded Kshs 37,692 for days worked, Kshs 70,000 in lieu of notice (limited to the actual monthly gross salary), Kshs 97,074 deducted by the former employer on account of the Respondent's email representation, and the forfeited gratuity of Kshs 256,275. Under section 49(1)(c), compensation was fixed at six months' gross salary, Kshs 420,000, considering the Respondent's failure to honour representations as an unfair labour practice. Judgment was entered with interest at court rates and costs of the suit.

Key legal issues

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01

Whether the Claimant's employment was unfairly terminated

Holding

Yes - the dismissal was both procedurally and substantively unfair

Reasoning

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.

p. 4
02

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

Holding

Yes - the Respondent was ordered to compensate both sums

Reasoning

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.

p. 5
03

What compensatory relief was appropriate under section 49(1)(c) of the Employment Act

Holding

Six months' gross salary (Kshs 420,000) rather than the claimed twelve months

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.A declaration that the summary dismissal of the Claimant was unfair
  2. 2.Salary for days worked before the dismissal, Kshs 37,692
  3. 3.Salary in lieu of notice, Kshs 70,000
  4. 4.The sum deducted from her dues by the former employer, Kshs 97,074
  5. 5.Gratuity sum payable by the former employer but forfeited by reason of her early exit, Kshs 256,275
  6. 6.Compensation under section 49(1)(c) of the Employment Act, six months' gross salary, Kshs 420,000
  7. 7.Interest on the sums awarded at court rates from the date of judgment until full payment
  8. 8.Costs of the suit

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 45(2)
  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 47(5)
  • Employment ActSection 35
  • Employment ActSection 49(1)(c)

Cases cited (1)

  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
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

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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, "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.