Kima International School of Theology v Ben Julius Achila [2014] KECA 174 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed employers must hear employees before firing them and cannot pay below the legal minimum wage, even if contracts say otherwise.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the respondent's services was unlawful for breach of Section 41(2) of the Employment Act and the rules of natural justice
- 2.Whether the Industrial Court's award of damages equivalent to 12 months' salary should be disturbed
- 3.Whether the Industrial Court erred in awarding damages for salary underpayment without a specific claim being pleaded
Key legal issues
#Fairness of termination procedure
Termination without giving the employee an opportunity to show cause breached Section 41(2) of the Employment Act and the rules of natural justice
The Employment Act codifies the rules of natural justice in Section 41, requiring an employer to explain reasons and hear representations before adverse action. The respondent received no show-cause communication; the first letter he received was the termination letter. Prior common law authority to the contrary has been displaced by the statute. The Industrial Court's finding of condemnation unheard was therefore correct and there was no point of law warranting interference under Section 17(2) of the Industrial Court Act.
Quantum of damages for unlawful termination
The award of damages equivalent to 12 months' salary was within the Industrial Court's statutory jurisdiction and not so inordinately high as to be a wholly erroneous estimate
Sections 49(1)(c) and 50 of the Employment Act and Section 12 of the Industrial Court Act empower the Industrial Court to award reasonable damages of up to 12 months' salary. The judge could not be faulted for awarding the statutory maximum. Applying the Kemfro Africa principle, the award was not so inordinately high as to be a wholly erroneous estimate, so as a point of law there was no basis to disturb it.
Award of damages for underpayment without a specific plea
Payment below the statutory minimum wage violates Section 17 of the Employment Act, justifying an award of damages for underpayment even without a specific claim
Section 17(1) obliges employers to pay the entire amount of wages earned or payable, and minimum wage provisions cannot be defeated by contractual clauses. The appellant did not dispute that Kes.8,600/= inclusive of house allowance was below the minimum wage, an offence under Section 17(10). Because the duty is statutory, the Judge was justified in awarding damages without a specific plea; 15% of pay as house allowance was reasonable.
Legal principles established
#- An employer must, before terminating employment on grounds of misconduct, poor performance or physical incapacity, explain the reasons to the employee and hear and consider any representations made
- Following the Employment Act 2007, Industrial Relations Act 2007 and Industrial Court Act 2011, damages and reinstatement are statutory reliefs and the Industrial Court may award reasonable damages of up to 12 months' salary for unlawful termination
- Employers cannot contract out of statutory minimum wage provisions; where salary paid is below the statutory minimum wage, the court may award damages for underpayment without a specific claim being pleaded
Court orders
#- 1.Appeal dismissed with costs
- 2.The Industrial Court awards of Kes.85,260/= (12 months' salary as damages for unlawful termination) and Kes.92,880/= (house allowance for underpayment) upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Industrial Court of Kenya at Kisumu
- Industrial Court Case No. 33 of 2013
- Jurisdiction invoked
- Section 17(2) of the Industrial Court Act (appeals on points of law only)
Relief refused
#Appellant's request that the awards of Kes.85,260/= and Kes.92,880/= be set aside and the appeal allowed
No legal basis to disturb the award of 12 months' salary; statutory obligation to pay minimum wage justified the underpayment award without a specific claim
Costs
Appeal dismissed with costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
an employer shall, before terminating the employment of an employee or summarily dismissing an employee under section 44 (3) or (4) hear and consider any representations which the employee may on the grounds of misconduct or poor performance, and the person, if any, chosen by the employee within subsection (1), make.
Read together, Sections 49(1)(c)and 50of the Employment Act 2012 as well as Section 12 of the Industrial Court Act, 2011vest the Industrial Court the jurisdiction to award damages of up to 12 months’ salary.
Employers cannot therefore jettison the minimum wage provision by any contrived clause in the contracts of employment with their employees.
For these reasons we find no merit in this appeal and accordingly dismiss it with costs.
Issues in the judgment
#The judgment inconsistently cites 'Sections 49(1)(c) and 50 of the Employment Act 2012' although the Act was enacted in 2007; the correct year elsewhere in the judgment is 2007
The judgment refers to Section 17(2) of the Industrial Court Act restricting appeals to points of law, but later discusses 'Section 17(1)' of the Employment Act in the same numbering; the reference to underpayment is to Section 17 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kima International School of Theology v Ben Julius Achila [2014] KECA 174 (KLR)", Case Analysis (2014). Civil Appeal No. 04 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/174/eng@2014-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.