Kiratu v Devkan Enterprises (Appeal E171 of 2023) [2024] KEELRC 2831 (KLR)
The bottom line
#Kenya's Employment Court ruled that firing an employee without a written notice or hearing is unfair, awarding the worker Kshs 141,330 in compensation and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Appellant's employment was substantively and procedurally unfair
The termination was both substantively and procedurally unfair; the Respondent failed to prove absconding on a balance of probabilities, issued no written redundancy notice under section 40(1)(b), and violated section 41 by not issuing a show cause letter or holding a disciplinary hearing.
The Respondent alternated between redundancy and absconding as grounds, produced no attendance registers, call records, or witnesses among employees said to have resumed work. No written redundancy notification under section 40(1)(b) was issued. No show cause letter or disciplinary hearing was afforded under section 41, which is mandatory. The employer bore the burden of justifying termination, which it failed to discharge.
Whether the Appellant was entitled to the reliefs sought
The trial court erred in denying reliefs; the Appellant was awarded one month's salary in lieu of notice, six months' salary as compensation for unfair termination, a certificate of service and costs, but the accrued leave claim failed.
Having found the termination unfair, the court assessed entitlements under sections 35, 28 and 49 of the Employment Act. Notice pay was statutory; compensation was set at six months considering her short service as an unskilled general worker; the leave claim failed for lack of proof and a CBA clause barring cumulation of leave.
Legal principles established
#- A first appellate court must re-evaluate, re-assess and reanalyse the evidence on the record and determine whether the trial court's conclusions stand, giving reasons either way
- Termination requires both substantive and procedural fairness
- Section 41 of the Employment Act is mandatory and non-compliance renders any resulting termination unfair
- Dismissal on account of absconding must be preceded by evidence of reasonable attempts to contact the employee and a show cause letter
- Compensation under section 49(4)(b) must be assessed judiciously, considering length of service and skills of the employee
Court orders
#- 1.One month salary in lieu of notice of Kshs 20,190/=
- 2.Accrued leave: NIL
- 3.Six months' salary as compensation for unfair termination of Kshs 121,140/=
- 4.Certificate of Service to be issued
- 5.Costs of the appeal and costs in the trial court awarded to the Appellant
- 6.Total award of Kshs 141,330/= subject to taxes and statutory deductions, with interest from the date of judgment until payment in full
- On appeal from
- Magistrates' Court
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the trial court (Employment and Labour Relations Court, Appeals Division)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiratu v Devkan Enterprises (Appeal E171 of 2023) [2024] KEELRC 2831 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 11th September, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2831/eng@2024-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.