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ELRCPartially AllowedNot stated in the excerpt beyond the Memorandum of Claim filed 27 April 2017· [2017] KEELRC 2000 (KLR)

Isaac Kiplagat Kirwa v Kenya Power & Lighting Co. Ltd [2017] KEELRC 2000 (KLR)

Employment and Labour Relations Court
24 November 2017
947 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court awarded an unfairly fired worker over Kshs 158,000 after the employer skipped the hearing and failed to justify the dismissal.

What this practically means

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Executive summary

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This was an uncontested formal proof suit in the Employment and Labour Relations Court at Eldoret arising from termination of employment. The Claimant, served with summons and the Memorandum of Claim by affidavit of service, faced no appearance or response from the Respondent, and the matter proceeded by formal proof on 30 and 31 October 2017. The court framed five issues covering unfair termination, validity of the reasons given, compensation, certificate of service, and costs. On fairness, the court applied sections 47(5), 43 and 45 of the Employment Act, 2007. The Claimant's testimony that the motor bikes he was accused of misfuelling or improperly ticketing were not assigned to him, and explanations on fuel consumption and work ticket surrender, went unchallenged, discharging his burden. The Respondent, absent from the proceedings, failed to prove valid and fair reasons for termination, which the court held to be substantively unfair. On remedies, the court awarded one month's pay in lieu of notice and compensation equivalent to four months' gross wages given about four years of service. Overtime claims were declined because pay slips showed overtime and unexplained standby payments in various months, making it more probable overtime had been paid. Accrued leave of Kshs 34,249 was awarded on unchallenged testimony. Service pay was denied as the Claimant was an NSSF contributor with no disclosed contractual basis for gratuity. The total award was Kshs 158,154 with costs to the Claimant. A minor discrepancy exists in the judgment between Kshs 16,871 and Kshs 16,781 for the notice pay.

Key legal issues

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01

Procedural and substantive fairness of termination

Holding

Termination was unfair; the Claimant discharged the burden under section 47(5) and the Respondent failed to discharge its burden under sections 43 and 45

Reasoning

The Claimant testified that motor bike KBJ 386J was not assigned to him and that the high fuel consumption of KBR 146U was expected; this testimony was unchallenged. The Respondent, having failed to enter appearance or file a response and not attending the formal proof hearing, did not prove valid and fair reasons for termination under sections 43 and 45 of the Employment Act, 2007.

p. 2
02

Overtime claims

Holding

Declined because pay slips indicated overtime and standby payments had been made

Reasoning

The pay slips produced showed the contract was temporary and that overtime was paid in March and August 2014, with standby monies in several other months which the Claimant did not explain. On the totality the court found it more probable than not that any overtime worked was paid for.

p. 2
03

Leave entitlement

Holding

Awarded, as the Claimant's testimony that he never took annual leave from 2011 was unchallenged

Reasoning

The Claimant testified he did not go on annual leave from 2011 to the time of separation. The Respondent did not controvert this evidence, so the court found in his favour and awarded the accrued leave as computed by the Claimant at Kshs 34,249/-. The Claimant's own computation was accepted since it was unchallenged.

p. 2
04

Appropriate remedies

Holding

One month pay in lieu of notice, four months' gross wages as compensation for unfair termination having regard to about four years of service, and accrued leave; no service pay as an NSSF contributor

Reasoning

The court applied the statutory framework: pay in lieu of notice equivalent to one month basic salary, compensation under section 49 calibrated to length of service (about four years), and declined service pay because the Claimant contributed to the NSSF under section 35(5) and (6) and disclosed no contractual foundation for gratuity.

p. 3

Legal principles established

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  • A claimant alleging unfair termination bears the initial burden under section 47(5) of the Employment Act, 2007, which where testimony is unchallenged is discharged
  • An employer must prove the reasons for termination and that they were valid and fair under sections 43 and 45 of the Employment Act, 2007; failure to participate leaves that burden undischarged

Court orders

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  1. 1.1 month pay in lieu of notice of Kshs 16,781/-
  2. 2.Compensation of Kshs 107,124/- (equivalent of 4 months gross wages)
  3. 3.Leave of Kshs 34,249/-
  4. 4.Total award of Kshs 158,154/- to the Claimant
  5. 5.Claimant to have costs of the suit

Authorities

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Legislation

  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 35(5) and (6)
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act, 2007); first-instance formal proof hearing

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, "Isaac Kiplagat Kirwa v Kenya Power & Lighting Co. Ltd [2017] KEELRC 2000 (KLR)", Case Analysis (2017). Not stated in the excerpt beyond the Memorandum of Claim filed 27 April 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/2000/eng@2017-11-24

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