Njung’e v Jinah t/a Make Over Salon and Supercuts (Constitutional Petition E045 of 2023) [2024] KEELRC 2607 (KLR)
The bottom line
#A Nairobi salon was ordered to pay a former stylist Kshs 345,500 because it fired her without a hearing, notice pay or service benefits.
What this practically means
#Executive summary
#Key legal issues
#Substantive justification for termination
The employer failed to prove valid reasons for the termination
Section 43 of the Employment Act requires the employer to genuinely believe the matters informing the termination existed. The 9/4/2022 letter gave only one month's notice without calling on the employee to show cause, so the allegations of gross misconduct raised in the reply were unproven, having never been put to the Petitioner before the decision was taken.
Procedural fairness under section 41 Employment Act
Procedural fairness was violated as the Petitioner was not heard before termination
The termination letter of 9/4/2022 did not invite the employee to show cause and the second letter of 12/4/2022 terminated with immediate effect after she refused to sign the first letter. This fell below the section 41 threshold and breached Article 41 read with Article 47 of the Constitution.
Reliefs and quantum
Petitioner awarded 6 months' salary compensation, service pay, leave pay and notice pay totalling Kshs 345,500
Applying section 49(4) factors - 5 years of service, no contribution to the termination, non-payment of terminal benefits - the court fixed compensation at 6 months' salary. Service pay was due because the Petitioner was not a member of NHIF or a registered pension or provident fund scheme.
Legal principles established
#- For termination to pass the fairness test there must be both substantive justification and procedural fairness
- Once an employee makes a prima facie case of unfair termination, the burden of proof shifts onto the employer to justify the termination
- A notice of termination that does not call upon the employee to show cause or afford a hearing renders the termination substantively and procedurally unfair
Court orders
#- 1.A declaration that the termination without prior adequate notice, opportunity to be heard and written reasons violated the Petitioner's right to Fair Administrative Action under Article 47 of the Constitution and the Fair Administrative Action Act
- 2.A declaration that the termination without just cause and withholding of salary arrears, leave allowance and certificate of service violated the Petitioner's right to Fair Labour Practices under Article 41 of the Constitution and the Employment Act
- 3.Award of 6 months' salary in compensation assessed at Kshs 210,000
- 4.Service pay at Kshs 81,000
- 5.Payment in lieu of 21 days accrued leave days assessed at Kshs 24,500
- 6.One month salary in lieu of notice at Kshs 30,000
- 7.Total award of Kshs 345,500
- 8.Costs of the suit awarded to the Petitioner
- Jurisdiction invoked
- Original employment and labour relations jurisdiction; Article 41 and Article 47 of the Constitution and the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njung’e v Jinah t/a Make Over Salon and Supercuts (Constitutional Petition E045 of 2023) [2024] KEELRC 2607 (KLR)", Case Analysis (2024). Constitutional Petition No E045 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2607/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.