Nyoike v Urithi Housing Cooperative Society Limited (Cause 777 of 2018) [2024] KEELRC 94 (KLR)
The bottom line
#A Kenyan court ruled an employee's dismissal unfair because the employer gave no reason and denied her a fair hearing, awarding her over Kshs. 483,000.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether termination was based on valid reason
- 2.Whether termination was fairly executed
- 3.Whether the claimant merits the prayers sought
Key legal issues
#Whether termination was founded on valid reason
Termination was not founded on valid reason; the alleged rudeness and indiscipline were unsupported by any evidence
The termination letter gave no reason, merely stating services were no longer required. The reason pleaded (rudeness to the Board Chairman) was unsupported by documentary or oral evidence; the Chairman did not testify. Other allegations of insubordination and rudeness to clients and colleagues were likewise unsupported and never communicated to the claimant.
Whether termination was executed fairly
Termination was procedurally unfair under Section 41 of the Employment Act
The claimant was invited to a Board meeting without an agenda and was not told it was a disciplinary or show-cause meeting. No charges were issued, and she was not advised of her right to attend with a colleague or trade union representative as required by Section 41 of the Employment Act.
Whether the claimant merits the prayers sought
Only annual leave and compensation for unfair termination allowed; reinstatement, notice pay, commission and medical reimbursement declined
Reinstatement was time-barred under section 12(3)(viii) of the ELRC Act. Notice pay was conceded as paid. Commission had no contractual or documentary basis. Medical reimbursement failed because the respondent only procured the cover and had no power to direct the insurer; the claim lay against the Insurance Company.
Legal principles established
#- A termination letter must disclose the reason or reasons justifying termination under Section 43 of the Employment Act
- An employer must comply with Section 41 of the Employment Act by specifying charges and allowing an employee to be accompanied at a disciplinary hearing
- An employer bears the evidential burden to keep and produce annual leave records under Section 74(1)(f) of the Employment Act
Court orders
#- 1.It is declared that termination was unfair
- 2.The claimant is allowed the prayers for annual leave at Kshs. 60,484 and compensation for unfair termination at Kshs. 423,388 - total Kshs. 483,872
- 3.Costs to the claimant
- 4.Interest allowed at court rate, from the date of Judgment, till payment is made in full
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, section 12(3)(viii); Employment Act, 2007 (Sections 41, 43, 45)
Relief refused
#Reinstatement
Time-barred under section 12(3)(viii) of the Employment and Labour Relations Court Act, confined to 3 years of dismissal
1-month salary in lieu of notice at Kshs. 120,970
Claimant conceded she was paid 2 months' salary in lieu of notice
Commission of Kshs. 660,000 (September 2017 to February 2018)
Not a benefit in her contract or policy, not in pay slips, based on claimant's own average
Reimbursement of medical expenses at Kshs. 559,935
Respondent only procured the medical cover and did not assume insurance liability; claim lies against the Insurance Company
Costs
Costs to the claimant
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.
It is declared that termination was unfair.
The claimant is allowed the prayers for annual leave at Kshs. 60,484 and compensation for unfair termination at Kshs. 423,388 - total Kshs. 483,872.
Termination was unfair for want of valid reason, and lack of fair procedure, as required under Sections 41, 43 and 45 of the Employment Act, 2007.
The claimant was not advised that she was to attend any disciplinary meeting, in the company of a colleague of her choice, or a trade union representative, in accordance with Section 41 of the Employment Act.
The prayer for reinstatement is time-barred under section 12 [3] [viii] of the Employment and Labour Relations Court Act.
Costs to the claimant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyoike v Urithi Housing Cooperative Society Limited (Cause 777 of 2018) [2024] KEELRC 94 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/94/eng@2024-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.