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IndustrialPartially AllowedNot stated in the judgment· [2013] KEIC 5 (KLR)

Kunde v Kaps Municipal Parking Services Ltd (Cause 57 of 2012) [2013] KEIC 5 (KLR)

Industrial Court of Kenya
8 November 2013
1,772 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that dismissing an employee without a fair hearing and a clear, proven reason is unfair termination entitling the worker to pay.

What this practically means

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Executive summary

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The claimant, employed on 25/1/2007 as a parking assistant cum cashier on a yearly renewable fixed term contract ending 30/4/2010, was sent on disciplinary leave in August 2009 and then summarily dismissed effective 9/9/2009 for alleged unspecified fraudulent activities said to have caused loss of the respondent's revenue. She claimed terminal dues, payment in lieu of notice and leave, 14 days unpaid August 2009 salary, overtime and damages for breach of contract and unlawful termination. The respondent contended the dismissal was fair and lawful, alleging the claimant was involved in theft and sale of receipt books. The court framed three issues: whether the claimant was on a fixed term contract, whether the contract was wrongfully and unfairly terminated, and entitlement to relief. It found the claimant was on a yearly renewable contract ending 30/4/2010. On termination, it held that dismissal without the contractual one month notice was wrongful; that under Section 41 of the Employment Act a disciplinary hearing is mandatory and its breach amounts to unfair termination; and that under Section 43 the employer bears the burden of proving the reason, applying an objective reasonable-employer test. The cited reason was vague, the investigations shoddy, and no evidence connected the claimant to the fraud. Judgment was entered for the claimant for one month salary in lieu of notice, salary for the unexpired contract period to April 2010, and 14 days August 2009 salary, totalling Kshs. 144,123.25, with costs and interest from filing. Overtime was refused for lack of evidence, and no damages for unfair dismissal issued as no such prayer was made.

Key legal issues

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01

Whether the claimant was employed on a fixed term contract

Holding

Yes - a yearly renewable fixed term contract ending 30/4/2010

Reasoning

The court considered the letter of appointment dated 25/1/2007 and the corroborating testimony of CW1 and RW1, both confirming the claimant was on a yearly renewable contract scheduled to end on 30/4/2010, and so answered the first issue affirmatively.

p. 3
02

Whether the dismissal was wrongful and unfair

Holding

Yes - termination without notice breached the contract, the claimant was not heard, and the reason was vague and unproven

Reasoning

Dismissal without the contractual one month notice breached the contract. Section 41 mandates a hearing before dismissal for gross misconduct, which was not accorded. Section 43 places the burden of proving the reason on the employer; the cited fraud was unspecified, no evidence connected the claimant to it, investigations were shoddy, and the objective reasonable-employer test was not satisfied. Termination was therefore both wrongful and unfair.

p. 4
03

Whether the claimant is entitled to the reliefs sought

Holding

Yes, subject to alterations - notice pay, salary for unexpired contract term, 14 days August salary and leave pay; overtime refused

Reasoning

Having found wrongful and unfair termination, the court awarded one month salary in lieu of notice, salary for the unexpired contract period to 30/4/2010, the unpaid 14 days of August 2009, and pay in lieu of 28 days leave. Overtime was dismissed for lack of evidence and particulars, and no damages for unfair dismissal issued as no such prayer was made.

p. 4

Legal principles established

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  • A disciplinary hearing before dismissal for gross misconduct is mandatory and its breach amounts to unfair termination
  • The reason for dismissal must be tested objectively against the standard of a reasonable employer
  • Vague, unspecified reasons for dismissal are not valid reasons within the meaning of Section 45

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for one month salary in lieu of notice of Kshs. 13,858.00
  2. 2.Salary for September 2009 to April 2010 of Kshs. 110,864.00
  3. 3.Salary for 14 days in August 2009 of Kshs. 6,467.06 (total Kshs. 144,123.25)
  4. 4.Costs of the suit to the claimant
  5. 5.Interest from the time of filing the suit
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act); no specific constitutional/statutory provision cited for 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, "Kunde v Kaps Municipal Parking Services Ltd (Cause 57 of 2012) [2013] KEIC 5 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2013/5/eng@2013-11-08

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