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ELRCPartially AllowedNot stated in the judgment

Nzioka v Kifaru Place Ltd & another (Employment and Labour Relations Cause E170 of 2022) [2024] KEELRC 40 (KLR)

Employment and Labour Relations Court
25 January 2024
1,029 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that firing an employee by WhatsApp message, without notice or a hearing, was unfair and awarded him over Kshs. 408,000.

What this practically means

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Executive summary

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This was an undefended employment claim heard by formal proof after the respondents failed to attend a hearing date taken by consent. The claimant, employed on 1/9/2021 as restaurant manager for the bars at a monthly salary of Kshs. 70,000/=, later raised to Kshs. 90,000/=, testified that on 16/1/2022 a director, Mr. Eric Mbiu, instructed him to swap M-Pesa till numbers. Co-director Dr. Joseph Mutie protested and sent a WhatsApp message in the 'Kifaru Management' group stating '@Nzioka you are fired will pay your cash tomorrow.' The claimant was summarily dismissed without notice, a notice to show cause, or an opportunity to be heard, and received no terminal benefits or certificate of service. The court held that even in an undefended suit the claimant bears the burden of proof, and found that the respondents violated sections 36, 41, 43 and 45 of the Employment Act, 2007, having neither a valid reason nor a fair procedure. Applying Mark Wafula, Postal Corporation of Kenya v Andrew T. Tanui and Bamburi Cement Ltd v William Kilonzi, the court awarded two months' salary (Kshs. 180,000/=) as compensation, Kshs. 90,000/= in lieu of notice, Kshs. 48,000/= for 16 days worked in January 2022, and Kshs. 90,000/= in lieu of 21 untaken leave days, totalling Kshs. 408,000/=. The overtime and underpayment claims were dismissed for lack of proof. Judgment was entered with interest at court rates, an order for a certificate of service within 14 days, 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.Whether the claimant proved on a balance of probabilities that his termination was unlawful and unfair
  2. 2.Whether the respondents had a valid reason to terminate the claimant's employment and followed fair procedure
  3. 3.What reliefs, if any, the claimant is entitled to

Key legal issues

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01

Lawfulness and fairness of summary dismissal via WhatsApp message

Holding

The dismissal by WhatsApp message without notice, notice to show cause or a hearing was unlawful and unfair, entitling the claimant to compensation under section 49(1)(c) and (4)

Reasoning

The claimant served for one year and two months and was dismissed summarily by a message in the management WhatsApp group without being given notice or a chance to explain. The court found violations of sections 36, 41, 43 and 45 of the Employment Act and, applying the cited authorities, awarded the equivalent of two months' salary as compensation, considering the suddenness of termination, non-payment of terminal benefits and the respondent's failure to issue a certificate of service as aggravating.

p. 2
02

Entitlement to notice pay, arrear salary and leave

Holding

Claimant awarded one month's salary in lieu of notice, Kshs. 48,000/= for 16 days worked in January 2022, and one month's salary in lieu of 21 untaken annual leave days

Reasoning

The claimant was summarily dismissed and thus entitled to payment in lieu of notice. Having worked 16 days in January 2022 before termination, he was awarded proportionate salary. As he took no annual leave during his service and was entitled to 21 working days' leave per year, the court awarded one month's salary in lieu of the untaken leave.

p. 3
03

Proof of overtime and underpayment claims

Holding

Dismissed for lack of proof

Reasoning

Although the claim pleaded overtime and underpayments, the court found the claimant had not discharged the burden of proving these heads on a balance of probabilities and dismissed them, confirming that even in an undefended suit the claimant must prove each relief claimed.

p. 3

Legal principles established

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  • An employer must have a valid reason for termination and follow fair procedure, including notice to show cause and an opportunity to be heard, failing which the termination is unlawful and unfair under sections 36, 41, 43 and 45 of the Employment Act
  • In an undefended suit the claimant still bears the burden of proving the reliefs sought on a balance of probabilities

Court orders

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  1. 1.Judgment entered in favour of the claimant against the respondent for Kshs. 408,000/= comprising Kshs. 180,000/= compensation, Kshs. 90,000/= in lieu of notice, Kshs. 48,000/= salary for 16 days served in January 2022, and Kshs. 90,000/= in lieu of untaken leave days
  2. 2.Interest at court rates from date of judgment till payment in full
  3. 3.Respondent to provide Certificate of Service to the claimant within 14 days of the judgment
  4. 4.Costs of the suit to the claimant

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, 2007

Relief refused

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Overtime claim

Not proved on a balance of probabilities

p. 3

Under payments claim

Not proved on a balance of probabilities

p. 3

Costs

Costs of the suit awarded to the claimant

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.

It had no valid reason to terminate the employment of the claimant and the respondent did not follow a fair procedure in terminating the employment of the claimant. The termination was unlawful and unfair
p. 2Unfair termination - valid reason and fair procedure
However the claimant bears the burden to prove the reliefs sought in the suit on a balance of probabilities.
p. 2Burden of proof in undefended suits
all the elements of unlawful and unfair dismissal have been fully established by the claimant and award the claimant the equivalent of two (2) months’ salary in compensation for the unlawful and unfair dismissal in the sum of Kshs. 180,000/=.
p. 2Compensation award under section 49
Total award Kshs. 408,000/= e. Interest at court rates from date of judgment till payment in full. f. Respondent to provide Certificate of Service to the claimant within 14 days of the judgment. g. Costs of the suit
p. 3Final orders and disposition

Issues in the judgment

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minor

Internal date inconsistency: the court refers to salary for January 2023 although the termination occurred in January 2022 and the final orders say January 2022

minor

Hearing date appears inconsistently as 26/9/2013 and 26/9/2023 in the opening paragraphs

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, "Nzioka v Kifaru Place Ltd & another (Employment and Labour Relations Cause E170 of 2022) [2024] KEELRC 40 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/40/eng@2024-01-25

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