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ELRCPartially AllowedCause No 495 of 2016· [2025] KEELRC 501 (KLR)

Nzioka v Lemoc Limited (Cause 495 of 2016) [2025] KEELRC 501 (KLR)

Employment and Labour Relations Court
20 February 2025
OKOcharo Kebira
5,309 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan employer couldn't prove why it fired a worker, so the Employment Court awarded him seven months' salary for unfair termination.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 29th August 2012 as a meat attendant and later promoted to supervisor, sued challenging the termination of his employment on 23rd November 2015, seeking declarations of unfair termination, KShs. 14,673,587 in damages and dues, and a certificate of service. The Respondent maintained the dismissal was justified on grounds of overstocking meat and cheating customers on prices, asserting a disciplinary hearing was held on 12th November 2015. The court framed two issues: whether the termination was unfair, and whether the Claimant was entitled to the reliefs sought. On procedure, the court found the Claimant was never issued a show cause letter or invitation to a disciplinary hearing, that the minutes tendered did not evidence a disciplinary hearing, and that the Respondent had misguidedly attempted to mislead the court; the termination was procedurally unfair. On substance, the reasons in the termination letter ('fishy things') were too ambiguous to be valid and fair, and the customer email relied on postdated both the termination and the filing of the suit; the Respondent failed to discharge its burden under sections 43 and 45. Service pay was rejected because the Claimant was an NSSF member, and claims for unremitted NSSF and NHIF were referred to the statutory bodies. Gratuity was refused as the contract did not provide for it. Judgment was entered for the Claimant with a declaration of unfair termination, seven months' gross salary compensation, notice pay, November 2015 salary, a certificate of service within 30 days, interest, and costs.

Key legal issues

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01

Whether the termination was procedurally fair under section 41 of the Employment Act

Holding

The termination was procedurally unfair: the Claimant was not issued a show cause letter or invitation to a disciplinary hearing, and the alleged 'minutes' did not evidence a disciplinary hearing

Reasoning

Section 41 requires notification of grounds, an opportunity to prepare and make representations, and consideration of those representations before termination. The court found no show cause letter or invitation; the minutes tendered did not speak to a disciplinary hearing, and RW1 conceded dismissal was not discussed or recommended at the meeting. The court concluded the Respondent attempted to mislead it and found procedural unfairness.

p. 8
02

Whether there was a valid and fair reason for termination under sections 43 and 45

Holding

The reason given ('fishy things') was too ambiguous to be valid and fair; the customer email postdated the termination and was hearsay; the Respondent failed to discharge its burden

Reasoning

The employer must prove reasons for termination and their validity. The termination letter alleged cheating on prices and 'fishy things' without clarity. The sole corroborating email was dated 12th May 2016, after termination and after filing of suit, exposing the Respondent as uncandid. The court concluded the termination was substantively unfair.

p. 9
03

Entitlement to compensation for unfair termination under section 49(1)(c)

Holding

Awarded seven months' gross salary (KShs. 300,027) considering permanent terms, length of service, manner of termination and the Respondent's lack of candour

Reasoning

Section 49(1)(c) confers discretionary compensatory relief. The court weighed the manner of termination (devoid of procedural and substantive fairness), permanent employment, length of service, and the Respondent's attempt to mislead the court, settling on seven months' gross salary.

p. 11
04

Entitlement to service pay and unremitted NSSF/NHIF deductions

Holding

Service pay rejected because the Claimant was an NSSF member; claims for unremitted NSSF and NHIF declined as they should be pursued with the statutory bodies

Reasoning

Section 35(6)(d) excludes NSSF members from service pay; where an employer defaults on NSSF contributions the remedy lies under section 14 of the NSSF Act, not in an order for service pay. Following Simiyu v Nzoia Sugar, unremitted NSSF dues and penalties fall within the statutory body's mandate, and the court extended the same reasoning to NHIF.

p. 11

Legal principles established

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  • For a termination to pass the fairness test there must be both substantive justification and procedural fairness
  • The employer bears the legal burden of proving the reasons for termination and that they were valid and fair under sections 43 and 45 of the Employment Act
  • An employee who is a member of NSSF is excluded from service pay under section 35(6)(d) of the Employment Act, and the remedy for unremitted NSSF contributions lies under section 14 of the NSSF Act
  • Gratuity is a gratuitous contractual payment available only where the contract of employment provides for it

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was unfair
  2. 2.Compensation pursuant to section 49(1)(c) of the Employment Act of seven months' gross salary, KShs. 300,027
  3. 3.One month's salary in lieu of notice, KShs. 42,861
  4. 4.Salary for the days worked in November 2015, KShs. 33,200.00
  5. 5.The Respondent to issue the Claimant with a certificate of service within 30 days of the date of the Judgment
  6. 6.Interest on the awarded sums at court rates from the date of the Judgment till full payment
  7. 7.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment Act, 2007Sections 35, 35(5), 35(6), 41, 43, 45, 45(1) and (2), 47(5), 49(1)(c), 51
  • NSSF Act (cap 258)Section 14
  • Constitution of Kenya, 2010Not specified (invoked generally in the statement of claim)
  • Retirement Benefits ActNot specified
  • Evidence ActReferenced generally
  • Civil Procedure Act/RulesReferenced generally

Cases cited (5)

  • Pius Machafu Isindu vs. Lavington Security Guards Limited
    [2017] eKLR
  • Walter Ogal Anuro -v- Teachers Service Commission
    [2013] eKLR
  • Wafula v Fidelity Security Limited
    [Cause 24 of 2017] KEELRC 3418 (KLR) (20 December 2023)
  • Simiyu v Nzoia Sugar Company Limited
    (Employment and Labour Relations Claim E005 of 2021) [2022] KEELRC 1758 (KLR) (12 May 2022)
  • Bamburi Cement Ltd v William Kilonzi
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Nzioka v Lemoc Limited (Cause 495 of 2016) [2025] KEELRC 501 (KLR)", Case Analysis (2025). Cause No 495 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/501/eng@2025-02-20

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