Murimi v Mini Bakeries (Nairobi) Limited (Cause 2 of 2022) [2024] KEELRC 2604 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Date of commencement of employment
The Claimant was employed by the Respondent in 1997 orally, before the contract was reduced to writing in 2008 and 2011
The court considered the appointment and confirmation letters of 2008 issued by the Respondent's sister company by the Respondent's own Legal and Administration Manager, and the NSSF records showing contributions by Mini Bakeries from 2001. The Respondent produced no evidence rebutting the Claimant's averment, and under sections 74 and 10(6) and (7) of the Employment Act the burden of keeping and producing employment records lies on the employer.
Whether there was valid reason for termination
The termination was without valid reason and therefore unfair
The show cause letter and the termination letter advanced different grounds, and the reasons in the termination letter were never put to the Claimant. The Respondent's own witness admitted the Claimant did not participate in the embezzlement, that his juniors who committed it had been terminated, and that the audit found the Respondent's systems weak. The contract did not specifically outline the Claimant's duties, so the negligence ground failed the valid reason test under sections 43 and 45.
Whether fair procedure was followed
The Respondent followed fair procedure under section 41 of the Employment Act
The Claimant was issued with a notice to show cause, given adequate time to respond, and given adequate notice to attend a disciplinary hearing where he appeared with a colleague of his choice. The court found this satisfied the procedural requirements of section 41 and section 45(2)(c), so only the substantive fairness limb failed.
Remedies for unfair termination
Notice pay for one month, 96 days' leave pay, refund of unlawful deductions, and 10 months' salary compensation were awarded
Having served over 10 years, the Claimant was entitled to 3 months' notice pay, of which two months had been paid. The Respondent's leave form showing an amended balance of 12 days did not tally with its own figures, supporting 96 unpaid leave days. The 35% deduction for alleged losses had no justification. Considering section 49(4) factors and over 20 years of service, 10 months' compensation was awarded instead of the 12 sought.
Legal principles established
#- The employer bears the burden of proving the reason or reasons for termination, and where it fails to do so, the termination is deemed unfair
- Where an employer fails to keep employment records, the burden of disproving the employee's averments as to terms and duration of employment lies on the employer
- An employee cannot be compelled to take leave during terminal notice so as to defeat the right to be paid in lieu of leave
- Grounds for termination not raised in the show cause letter, on which the employee was never heard, cannot sustain a lawful termination
Court orders
#- 1.Declaration that the termination of the Claimant's employment was unfair and unlawful
- 2.Payment of 1 month's salary in lieu of notice of Kshs 159,265
- 3.Payment in lieu of annual leave not taken of Kshs 600,204.40
- 4.Refund of the 35% deductions of Kshs 75,832.00
- 5.Compensation of 10 months' salary of Kshs 1,592,650 for unfair termination
- 6.Respondent to pay the Claimant's costs
- 7.Interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution and the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Murimi v Mini Bakeries (Nairobi) Limited (Cause 2 of 2022) [2024] KEELRC 2604 (KLR)", Case Analysis (2024). Cause No 2 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2604/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.