Kenny Kinako v Ringier Kenya Limited [2016] KEELRC 1229 (KLR)
The bottom line
#A Kenyan court awarded an employee over Kshs.12 million after finding his employer rigged his dismissal through malice and an unfair disciplinary process.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who employed the claimant?
- 2.Whether there were valid reasons for termination of claimant's employment
- 3.Whether in effecting dismissal the Respondent followed due procedure
- 4.Whether the Claimant is entitled to any remedies
Key legal issues
#Identity of the employer - whether the Claimant was employed by Ringier Kenya Limited or Ringier Africa AG
The employer at all material times was Ringier Kenya Limited, evidenced by the letters of appointment, confirmation, contract amendments signed by its officers, payment of salaries and statutory dues, and rejection of the appeal by its human resource officer.
The termination letter and appeal rejection came from Respondent channels; the letter of 6 February 2014 expressly referenced the Employment Contract 'between Ringier Kenya Ltd' and the employee. Statutory dues to KRA, NSSF and NHIF were remitted by the Respondent. The interchange of letterheads and names did not displace the employment relationship. The Respondent should have joined Ringier Africa AG if it claimed otherwise.
Whether there were valid reasons for termination
The court did not delve into the merits of the reasons because the process was irredeemably tainted by malice and unfair labour practice; a termination arising from such a process cannot find justification under any law.
The court found the Respondent had, before the disciplinary hearing, circulated an email directing employees to withhold information from the Claimant, effectively pre-determining the outcome and shutting him out of the employment space. This malice rendered the subsequent hearing a sham, making an inquiry into the substantive reasons academic.
Whether fair procedure under section 41 of the Employment Act was followed
Due procedure was compromised: the PIP was imposed without the Claimant's participation, the disciplinary hearing notice contained a patently erroneous past date, an external advocate attended while the Claimant was denied similar benefit, colleagues were directed not to accompany him, and the minutes were flawed.
Section 41 requires an explanation of reasons in a language the employee understands, with a fellow employee or union representative present. The email of 15 May 2014 ensured no witness would attend the hearing. The Respondent persisted with a hearing scheduled for a past date. The process was eschewed to defeat justice; by the hearing date the die was cast and the termination was unfair.
Remedies - reinstatement, salaries, exemplary damages, compensation and notice pay
Reinstatement and salaries from June 2014 refused; exemplary damages of Kshs.7,200,000, compensation of 6 months' gross salary (Kshs.3,600,000), notice pay of 3 months (Kshs.1,800,000) and a Certificate of Service awarded.
Reinstatement was refused because trust and confidence was lost. Exemplary damages were justified by the malice found, drawing on precedent. Compensation under section 49 of the Employment Act followed the finding of unfair labour practice; notice pay was awarded under the court's discretion and a Certificate of Service under section 51.
Legal principles established
#- A performance improvement plan must be commenced in good faith with the active participation of the employee; it cannot be unilaterally written by the employer and imposed.
- Where an employer invites an external advocate to an internal disciplinary hearing, the employee should be accorded a similar benefit.
- Directing fellow employees to withhold information from and shun a colleague under investigation constitutes malicious and unfair labour practice amounting to inhuman and degrading treatment prohibited under the Constitution.
- A subsidiary company is a distinct legal entity responsible for its own liabilities and cannot confer responsibility on its parent company; each bears liability as a distinct entity.
Court orders
#- 1.Declaration that the termination of the Claimant was unfair
- 2.Compensation awarded at Kshs.3,600,000.00 (6 months' gross salary)
- 3.Exemplary damages awarded at Kshs.7,200,000.00
- 4.Notice pay of Kshs.1,800,000.00 (3 months' gross salary)
- 5.Dues subject to the provisions of section 49(2) of the Employment Act
- 6.Respondent to unconditionally issue the Claimant with an appropriate Certificate of Service
- 7.Costs of the suit to the Claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12 (including section 12(3)(viii)); Employment Act sections 41, 49, 51
Relief refused
#Reinstatement or redeployment
Trust and confidence between the parties was lost; reinstatement is granted only in exceptional cases and the claimant did not emphasise this remedy.
Unpaid salaries from June 2014 to date
Salaries are only payable for time worked; the Claimant was not in the service of the Respondent after June 2014.
Costs
Costs of the suit to the Claimant
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.
Judgement is hereby entered for the Claimant against the Respondent in the following terms; a. I declare the termination of the Claimant was unfair;
i. Compensation is awarded at kshs.3,600,000.00; ii. Exemplary damages awarded at kshs.7,200,000.00; iii. Notice pay Kshs.1,800,000.00;
c. The Respondent to unconditionally issue the Claimant with an appropriate Certificate of Service; and d. Costs of the suit to the Claimant.
Where the employer takes the option of inviting an external advocate at the disciplinary hearing, similar benefit should be accorded to the employee.
The employer at all material times was the Respondent.
Such unfair labour practice set in motion a termination that cannot find justification under any law.
Issues in the judgment
#Judgment states inconsistent dates for the disciplinary hearing notice: 'The Respondent allegedly invited the Claimant to a meeting on 17th January 2014 through a letter dated 14th May 2014 for a disciplinary hearing' - the hearing date of 17 January 2014 precedes the notice date of 14 May 2014; the court itself later treated this as an obvious error.
Typographical/verbal errors throughout the judgment (e.g. 'singed' for 'signed', 'decline din' for 'declined in', 'tarnation' for 'termination', 'claioamtn' for 'claimant'), which do not affect substance.
Contradiction in the defence as pleaded: 'The Respondent in defence deny that they did not have an employment contract with the Claimant' - a double negative leaving the pleaded position ambiguous.
Judgment recites the hearing letter as 'dated 22nd May 2015' in paragraph 66 while elsewhere the hearing invitation is dated 22nd May 2014.
Exemplary damages figure appears once as 'kshs.7, 200. 000.00' (misplaced punctuation) and in the final orders as Kshs.7,200,000.00.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenny Kinako v Ringier Kenya Limited [2016] KEELRC 1229 (KLR)", Case Analysis (2016). Cause No. 1557 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1229/eng@2016-04-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.