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ELRCPartially AllowedNot stated in judgment

Kiganane v Kenya Institute of Studies in Criminal Justice (Employment and Labour Relations Claim 229 of 2017) [2022] KEELRC 4105 (KLR)

Employment and Labour Relations Court
29 September 2022
1,737 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a dismissed worker Kshs 375,230.70 after finding his oral sacking, without notice, reason or hearing, was unfair and unlawful.

What this practically means

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Executive summary

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The claimant, engaged by the respondent as a logistics officer by letter of appointment dated April 11, 2011 at a starting salary of Kshs 8,000 (rising to Kshs 18,000 by March 2017), claimed he was summarily and orally dismissed on March 27, 2017 after he and co-workers approached the college principal to enquire about salary arrears for January to March 2017. He sued for notice pay, salary arrears, annual leave allowance, house allowance, service gratuity, and maximum compensation for unlawful dismissal, totalling Kshs 611,538.30. The respondent was served with the statement of claim and hearing notice but neither entered appearance nor filed a response, and did not attend the hearing on February 21, 2022. The court framed three issues: whether the dismissal was wrongful, unfair and unlawful; entitlement to reliefs; and costs. Finding the claimant's evidence uncontroverted, the court held the summary dismissal breached sections 41, 43, 44, 45 and 47(5) of the Employment Act and Articles 41 and 47 of the Constitution, as no notice was issued, no reason given, and no disciplinary hearing held. The claim for house allowance was denied for failure of proof under section 107 of the Evidence Act, and the gratuity claim was denied because gratuity was not provided for in the contract. Awarding the maximum 12 months' compensation under section 49(4), the court entered judgment for Kshs 375,230.70 with interest and costs to the claimant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Was the dismissal of the claimant by the respondent wrongful, unfair, and unlawful?
  2. 2.If (a) above is in the affirmative, is the claimant entitled to the reliefs sought?
  3. 3.Costs.

Key legal issues

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01

Whether the summary dismissal was wrongful, unfair and unlawful

Holding

The dismissal was wrongful, unreasonable and unlawful as the claimant was denied both substantive and procedural fairness

Reasoning

The respondent was properly served but did not participate, so the claimant's uncontroverted evidence stood. The claimant was orally dismissed after enquiring about salary arrears, with no notice, no reason, and no disciplinary hearing, violating sections 41, 43, 44, 45 and 47(5) of the Employment Act and Articles 41 and 47 of the Constitution.

p. 3
02

Whether the claimant was entitled to notice pay, salary arrears and annual leave allowance

Holding

All three heads granted as uncontroverted and supported by the appointment letter

Reasoning

Payment in lieu of notice was provided for in the appointment letter. Salary arrears for January to March 2017 and annual leave for six years were unrebutted; the respondent, though obligated to keep employment records under sections 10 and 74 of the Employment Act, failed to produce records to discount the claim.

p. 4
03

Whether house allowance was payable on top of the gross salary

Holding

Denied for failure of proof

Reasoning

The claimant produced no pay-slips and the appointment letter was silent on whether salary included a house allowance component, so the court could not determine whether the gross salary was all-inclusive. Applying section 107 of the Evidence Act, the claimant failed to discharge the burden of proof.

p. 4
04

Whether compensation for unlawful dismissal should be the maximum 12 months' gross salary

Holding

Maximum award of 12 months' gross salary (Kshs 216,000/=) granted under section 49(4) of the Employment Act

Reasoning

The court considered the section 49(4) factors: the respondent's conduct was unreasonable, inconsiderate, wrongful and unfair; the claimant contributed nothing to the dismissal; he did not obtain alternative employment; and he was denied substantive and procedural fairness and paid no final dues.

p. 4

Legal principles established

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  • An employer must afford an employee both substantive and procedural fairness before dismissing or terminating the employee
  • Failure to keep employment records under sections 10 and 74 of the Employment Act weighs against the employer in disputes
  • He who alleges must prove (burden of proof under section 107 of the Evidence Act)
  • Gratuity is not a right and cannot be awarded where the contract does not provide for it

Court orders

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  1. 1.A declaration be and is hereby issued that the summary dismissal or the claimant by the respondent was wrongful, unreasonable, unfair, and unlawful.
  2. 2.Award of one month's salary in lieu of notice - Kshs 18,000.00
  3. 3.Award of salary arrears for January, February and March 2017 @Kshs 18,000/= per month - Kshs 54,000.00
  4. 4.Award of annual leave allowance for six (6) years - Kshs 87,230.70
  5. 5.Compensation for wrongful and unlawful dismissal - Kshs 216,000.00
  6. 6.Total award of Kshs 375,230.70 with interest at court rate from the date of judgment until payment in full
  7. 7.The claimant is awarded costs of this cause
  8. 8.Except what is specifically awarded, the other prayers are denied

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Article 162(2) of the Constitution (as reflected in the judgment's application of the Employment Act and Constitution)

Relief refused

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House allowance in arrears (Kshs 151,200.00 less portions pleaded)

Claimant failed to prove the gross salary did not include a house allowance component

p. 4

Service gratuity for 6 years (Kshs 62,307.60)

Gratuity not provided for in the contract; gratuity is not a right

p. 4

Costs

The claimant is awarded costs of this cause. The same may be agreed on or taxed in the usual manner.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This court finds and holds that the summary dismissal of the claimant by the respondent was wrongful, unreasonable, and unlawful. It is so declared.
p. 3Unlawful summary dismissal
this is a suitable case for the award of the maximum compensation of 12 months gross salary
p. 4Maximum compensation under section 49(4)
A declaration be and is hereby issued that the summary dismissal or the claimant by the respondent was wrongful, unreasonable, unfair, and unlawful.
p. 4Final orders - declaration
Except what is specifically awarded, the other prayers are denied.
p. 5Final orders - refusal of other reliefs

Issues in the judgment

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minor

The total claimed is stated as Kshs 611,538.30 in the statement of claim extract but referred to as Kshs 611,539.30 in the reliefs discussion

minor

Heading 'IV. Termination' is repeated as a numbering error after 'III. Issues for Determination'

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, "Kiganane v Kenya Institute of Studies in Criminal Justice (Employment and Labour Relations Claim 229 of 2017) [2022] KEELRC 4105 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4105/eng@2022-09-29

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