Samuel Otieno Munala v Ken Knit (K) Limited [2017] KEELRC 1997 (KLR)
The bottom line
#Ken Knit had to pay a fired worker over Kshs 458,000 because it skipped the hearing and could not prove why his dismissal was fair.
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 Claimant's employment was unfair
- 2.whether the Claimant was underpaid
- 3.whether the Claimant had pending leave at the time of separation
- 4.appropriate remedies
Key legal issues
#Procedural fairness of termination
Compliance with section 41 was established - show cause notice, written response and oral hearing satisfied the statutory requirements.
The Respondent issued a show cause notice dated 27 October 2015 setting out the allegations, the Claimant responded in writing the same day, and an oral hearing was held on 29 October 2015. The Court therefore found substantial compliance with section 41 of the Employment Act, 2007, notwithstanding that the hearing date was taken in the Respondent's presence and the Respondent did not attend.
Substantive fairness of termination
Termination was not for valid and fair reasons; the employer failed to discharge the statutory burden under sections 43 and 45.
The Claimant's uncontroverted testimony was that he was ailing and on medication at the material time. The Respondent, though the hearing date was taken in its presence, did not attend the hearing and thus did not discharge the burden placed on it by sections 43 and 45 of the Employment Act to prove that the reasons for termination were valid and fair. The allegations of sleeping on duty therefore stood unproved.
Underpayments
The Claimant was underpaid from 1996 to 2015 as per the applicable Legal Notices.
The Claimant testified on his remuneration from 1996 to 2015 and on the applicable Legal Notices prescribing minimum wages. This testimony was not challenged or controverted, the Respondent having failed to attend the hearing. The Court therefore accepted the testimony and found the Claimant was underpaid, awarding the underpayments as sought.
Pending leave
The Claimant had accrued leave for 10 months of 2015.
The Claimant testified he did not take leave for the ten months he served in 2015. Under sections 10(3) and 74 of the Employment Act, the employer is obliged to keep and produce employment and leave records. The Respondent did not file leave records, so the uncontroverted testimony was accepted and the Claimant found to have accrued leave for 10 months, with pro rata leave also awarded.
Appropriate remedies
One month's pay in lieu of notice, October 2015 wages, leave, underpayments and maximum 12 months' compensation awarded; service pay and loss of earnings refused.
Under section 35(1)(c) the Claimant was entitled to one month's pay in lieu of notice (basic wage Kshs 10,316/-). Considering 19 years of service, the Court awarded the maximum compensation equivalent to 12 months' gross wages (gross wage at separation Kshs 11,863/-). Service pay was barred by NSSF contributions, and loss of earnings lacked any evidential, contractual or legal basis.
Legal principles established
#- Sections 43 and 45 of the Employment Act impose a statutory burden on an employer to prove the reasons for termination and that they were valid and fair; an employer that does not attend the hearing fails to discharge that burden.
- Uncontroverted testimony stands and will found a finding, particularly where the opposing party does not attend to rebut it.
- Where an employer fails to file leave records as required by sections 10(3) and 74 of the Employment Act, the employee's testimony on accrued leave is accepted.
- An employee contributing to NSSF is not entitled to service pay under section 35(5) and (6) of the Employment Act.
- A certificate of service is a statutory right of the employee.
Court orders
#- 1.Respondent to pay the Claimant pay in lieu of notice of Kshs 10,316/-
- 2.Respondent to pay October 2015 wages of Kshs 11,863/-
- 3.Respondent to pay leave of Kshs 7,734/-
- 4.Respondent to pay underpayments of Kshs 283,244/-
- 5.Respondent to pay compensation of Kshs 142,356/-, total award Kshs 458,513/-
- 6.Respondent to issue Certificate of Service within 14 days
- 7.Claimant to have costs on half scale
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (statutory employment dispute)
Relief refused
#2 months' pay in lieu of notice
No evidential basis disclosed; only 1 month awarded under section 35(1)(c)
Loss of earnings of Kshs 3,659,484/-
No evidential, contractual or legal basis laid for the relief
Service pay
Claimant was contributing to NSSF, disentitled under section 35(5) & (6)
Costs
Claimant to have costs on half scale.
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.
the Court can conclude that the termination of the Claimant’s contract was not for valid and fair reasons.
Sections 43 and 45 of the Employment Act, 2007 place a statutory burden upon an employer to not only prove the reasons for terminating an employee’s contract, but that the reasons were valid and fair.
From the foregoing, the Court is satisfied that the process undertaken by the Respondent substantially complied with the statutory requirements of section 41 of the Employment Act, 2007.
A certificate of service is a statutory right and the Respondent should issue one to the Claimant within 14 days of today.
From the foregoing, the Court finds and holds that the termination of the Claimant’s employment was unfair and awards him and orders the Respondent to pay him
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Otieno Munala v Ken Knit (K) Limited [2017] KEELRC 1997 (KLR)", Case Analysis (2017). Cause (Eldoret) - not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1997/eng@2017-11-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.