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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 2712 (KLR)

Kieti v Ikons Hotel Limited (Employment and Labour Relations Cause E068 of 2021) [2024] KEELRC 2712 (KLR)

Employment and Labour Relations Court
25 October 2024
1,775 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan hotel that laid off a worker during COVID-19 had to recall him formally or declare redundancy—silence counted as unfair termination worth Kshs. 105,000.

What this practically means

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Executive summary

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The claimant, orally employed as a Cook by the respondent hotel in November 2014 at a monthly salary of Kshs. 15,000, sued for unfair termination arising from the COVID-19 pandemic. He testified that after the March 2020 presidential directive closed hotels, he was never recalled when the directives were lifted, received no communication, and had to assume termination; he also claimed unpaid leave, notice pay, service pay and compensation. The respondent admitted employment but said the claimant agreed to go on leave by mutual consent, and that a notice was placed on the hotel door recalling employees; it attributed the loss of employment to force majeure, relying on Christopher Okwako & 21 others v Sai Eden Roc Hotel. The court framed three issues: whether the employment was frustrated by COVID-19, entitlement to reliefs, and costs. Applying Section 47(5) of the Employment Act on burden of proof, it held that while the initial release in March 2020 was understandable, the respondent produced no evidence of recalling the claimant once business reopened, and should have either communicated recall or served a redundancy notice under Section 40. Leaving the claimant in limbo was contrary to fair labour practices and amounted to unfair, unprocedural termination. Judgment was entered for the claimant: one month's notice pay (Kshs. 15,000) and six months' compensation (Kshs. 90,000), totalling Kshs. 105,000 with interest at 14% per annum, costs to the claimant, and a certificate of service within 30 days. Prayers for unpaid leave, March salary and service charge were refused. The claim was thus partially allowed.

Key legal issues

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01

Whether the claimant's employment was frustrated by the COVID-19 pandemic

Holding

The initial release in March 2020 may have been valid, but failure to communicate recall or declare redundancy after the lockdown was lifted constituted unfair and unprocedural termination.

Reasoning

The court accepted that both parties understood employees were released in March 2020 due to the pandemic closure and were to be recalled. However, the respondent produced no evidence of writing to recall the claimant, only a notice on the hotel door. The claimant's demand letter of 11 December 2020 went unanswered. Once the respondent reopened, it was obliged either to recall the claimant or serve a Section 40 redundancy notice. Silence left the claimant to assume termination, which was contrary to fair labour practices.

p. 4
02

Whether the claimant is entitled to the reliefs sought

Holding

Notice pay and six months' salary as compensation awarded; unpaid leave, part salary for March and service charge prayers refused.

Reasoning

Having found unfair termination, the court entered judgment for the claimant and awarded one month's salary in lieu of notice (Kshs. 15,000) and six months' equivalent salary as compensation for unfair termination (Kshs. 90,000), totalling Kshs. 105,000 with interest. Prayers for accrued leave, unpaid March salary and service charge were found baseless and not granted. A certificate of service was ordered within 30 days.

p. 4

Legal principles established

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  • An employer who releases employees during a crisis must, once conditions normalise, communicate recall or serve a redundancy notice under Section 40 of the Employment Act; leaving an employee in limbo is unfair termination contrary to fair labour practices.
  • Burden of proving unfair termination rests on the employee while the burden of justifying the grounds for termination rests on the employer under Section 47(5) of the Employment Act.

Court orders

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  1. 1.One month salary in lieu of notice of Kshs. 15,000/-
  2. 2.Six months' equivalent salary as compensation for unfair termination of Kshs. 90,000/-
  3. 3.Total award of Kshs. 105,000/- plus interest at 14% per annum from date of judgment till full payment
  4. 4.Costs awarded to the claimant
  5. 5.Claimant to be issued with his certificate of service within thirty (30) days

Authorities

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Legislation

  • Employment ActSection 47(5)
  • Employment ActSection 40
  • Employment ActSection 35(1)
  • Employment ActPart V
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (3)

  • Titus Muriuki Ndirangu V Beverly School of Kenya Limited
    [2022] eKLR
  • Bishar & 3 others V World Assembly of Muslim Youth (WAMY) EA & 3 others
    [2024] KEELRC 206 (KeKLR)
  • Christopher Okwako & 21 others V Sai Eden Roc Hotel
    [2014] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act; judgment does not cite the specific constitutional provision conferring jurisdiction)

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, "Kieti v Ikons Hotel Limited (Employment and Labour Relations Cause E068 of 2021) [2024] KEELRC 2712 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2712/eng@2024-10-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.