Nyaga v Kiewa Group Limited (Employment and Labour Relations Claim E012 of 2020) [2022] KEELRC 4098 (KLR)
The bottom line
#A Kenyan court ruled an accountant's dismissal unfair because the employer ambushed her in disciplinary meetings and failed to prove its PAYE claims.
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 employment of the claimant by the respondent was wrongful, unfair and unlawful
- 2.Whether the respondent is entitled to the counter claim and set-off
- 3.Whether the claimant is entitled to the relief sought
- 4.Who bears the costs of the claim
Key legal issues
#Whether the termination was wrongful, unfair and unlawful
Termination was unlawful for want of fair procedure - disciplinary meetings were staged in ambush without adequate notice or agenda, and the respondent failed to discharge its burden of justifying termination
The court found the disciplinary process defective: meetings were held without forewarning or adequate preparation time, and minutes were unexecuted and therefore suspicious. The respondent could not explain its failure to raise PAYE issues during 58 months of service. Under section 47(5) of the Employment Act the burden of justifying termination rests on the employer, and the respondent failed to discharge the burden as shifted, rendering the termination unfair.
Whether the respondent was entitled to the counter claim and set-off for unremitted PAYE
Counterclaim and set-off dismissed - deduction and remittance of PAYE is the employer's statutory responsibility, and the respondent was estopped by 58 months of acquiescence
Although the claimant was Finance Officer, PAYE deduction and remittance is the employer's statutory duty. There was no evidence the respondent ever insisted on or enquired about non-remittance during the claimant's 58 months of service. The respondent's claim arose from her own negligence and was an afterthought, so she was not entitled to the counterclaim and set-off.
Whether the claimant was entitled to the relief sought
Partially - having succeeded on unfair termination, the claimant was entitled to relief, but the court awarded only one month's notice pay, medical refund, salary for 19 days and six months' compensation
The court accepted that success on unlawful termination entitled the claimant to relief but did not grant the full package claimed, including the 12 months' maximum compensation, leave days, allowances and pension benefits. It settled on notice pay, medical refund, March 2020 salary and six months' compensation, totalling Kshs 2,818,376.00.
Legal principles established
#- The burden of justifying the grounds for termination of employment rests on the employer; failure to discharge it renders the termination unfair.
- Deduction and remittance of PAYE is the sole province of the employer and cannot be visited on an employee after years of acquiescence.
Court orders
#- 1.A declaration that the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful
- 2.One (1) month's salary in lieu of notice - Kshs 324,500.00
- 3.Kshs 347,989.00 being refund of medical expenses incurred by the claimant for himself and family
- 4.Kshs 198,887.00 being salary for 19 days of March, 2020
- 5.Six (6) months' salary as compensation for unlawful termination of employment - Kshs 1,947,000.00
- 6.Total award of Kshs 2,818,376.00
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; Employment and Labour Relations Court Act) - not expressly invoked in the judgment
Relief refused
#12 months' compensation for unfair termination
The court awarded only six months' compensation instead of the twelve months claimed
Payment for 28 accrued leave days (Kshs 432,667.00)
Not included in the relief granted in the final orders
Accrued airtime and mileage allowances (Kshs 148,610.00 and Kshs 348,000.00)
Not included in the relief granted in the final orders
Pension benefit (Kshs 884,812.50)
Not included in the relief granted in the final orders
Actual pecuniary loss for loss of career, and general, aggravated and exemplary damages
Not included in the relief granted in the final orders
Claimant's prayer that the counterclaim and set-off be struck out with the claim upheld in full
Counterclaim dismissed but only partial relief granted on the claim
Costs
No costs order appears in the final orders of the judgment.
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.
A declaration be and is hereby issued that the termination of the employment of the claimant by the respondent was wrongful, unfair and unlawful.
One (1) months salary in lieu of notice - Kshs 324,500.00.
Six (6) months salary as compensation for unlawful termination of employment – Kshs 324,500 x 6 = Kshs 1,947,000.00.
She has not activated her burden of proof as shifted. She has not justified termination of employment. I therefore find a case of unlawful termination of employment and hold as such.
All these disciplinary meetings were styled in ambush. The claimant was either not forewarned of the meeting or was not afforded adequate time and space to prepare for the meeting.
Inasmuch as the claimant was the Finance Officer of the respondent, it is trite law that the issue of deduction and remittance of PAYE is the sole province of the employer.
I find that she is not entitled to the counter claim and set-off and hold as such.
Issues in the judgment
#The judgment sets out costs as an issue for determination but the final orders make no costs award
The case title/number of the suit is not displayed in the judgment text; also inconsistent salary figure (Kshs 324,500.00 vs respondent's admitted Kshs 302,500.00)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyaga v Kiewa Group Limited (Employment and Labour Relations Claim E012 of 2020) [2022] KEELRC 4098 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4098/eng@2022-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.