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ELRCPartially AllowedNot stated in the excerpt

Nyoike v Urithi Housing Cooperative Society Limited (Cause 777 of 2018) [2024] KEELRC 94 (KLR)

Employment and Labour Relations Court
31 January 2024
1,986 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed by the respondent as an Accountant Grade UHCSL 4 from March 1, 2016 at a gross monthly salary of Kshs. 60,484, sued for unfair termination. She went on maternity leave in June 2017, delivered twins, and her medical bill of Kshs. 559,935 was unpaid by the insurer. In January 2018 she was invited to an Executive Board Committee meeting with no stated agenda, where she was asked to apologise for alleged rudeness and refused. She was denied January 2018 salary, and on February 21, 2018 her contract was terminated by letter that gave no reason. The respondent alleged indiscipline, insubordination and rudeness to the Board Chairman and clients, and argued she was accorded a fair hearing and paid terminal benefits. The respondent called no witnesses. The court framed three issues: valid reason, fair procedure, and the prayers sought. It found the termination letter disclosed no reason as required by Section 43 of the Employment Act; the pleaded reasons were unsupported by any evidence, as the Board Chairman did not testify; and the claimant was never told the meeting was a disciplinary one, nor advised of her Section 41 rights to be accompanied. Termination was therefore unfair for want of valid reason and fair procedure. Reinstatement was declined as time-barred under section 12(3)(viii) of the ELRC Act; notice pay and commission were declined as paid or lacking contractual basis; medical reimbursement was declined as the respondent procured but did not underwrite the cover. Annual leave of Kshs. 60,484 and seven months' compensation of Kshs. 423,388 were awarded, with costs and interest at court rate from judgment until payment in full.

Questions the Court framed

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

  1. 1.Whether termination was based on valid reason
  2. 2.Whether termination was fairly executed
  3. 3.Whether the claimant merits the prayers sought

Key legal issues

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01

Whether termination was founded on valid reason

Holding

Termination was not founded on valid reason; the alleged rudeness and indiscipline were unsupported by any evidence

Reasoning

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.

p. 3
02

Whether termination was executed fairly

Holding

Termination was procedurally unfair under Section 41 of the Employment Act

Reasoning

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.

p. 3
03

Whether the claimant merits the prayers sought

Holding

Only annual leave and compensation for unfair termination allowed; reinstatement, notice pay, commission and medical reimbursement declined

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.It is declared that termination was unfair
  2. 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. 3.Costs to the claimant
  4. 4.Interest allowed at court rate, from the date of Judgment, till payment is made in full

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 Act, section 12(3)(viii); Employment Act, 2007 (Sections 41, 43, 45)

Relief refused

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Reinstatement

Time-barred under section 12(3)(viii) of the Employment and Labour Relations Court Act, confined to 3 years of dismissal

p. 4

1-month salary in lieu of notice at Kshs. 120,970

Claimant conceded she was paid 2 months' salary in lieu of notice

p. 4

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

p. 4

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

p. 4

Costs

Costs 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 is declared that termination was unfair.
p. 4declaration of unfair termination
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.
p. 4final orders - award
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.
p. 4unfair termination standard
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.
p. 3Section 41 fair procedure
The prayer for reinstatement is time-barred under section 12 [3] [viii] of the Employment and Labour Relations Court Act.
p. 4statutory limit on reinstatement
Costs to the claimant.
p. 4costs order

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, "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.