Nyambura v East Africa Safari Air Express Limited (Cause 1399 of 2018) [2024] KEELRC 540 (KLR)
The bottom line
#A Kenyan court awarded a dismissed pilot over Kshs 4.7 million because her employer could not prove its reasons or give her a hearing before firing her.
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 Respondent has proved that it had a fair and valid reason to terminate the Claimant's employment
- 2.Whether the Claimant was afforded procedural fairness prior to termination
- 3.Is the Claimant entitled to the reliefs sought?
Key legal issues
#Whether the employer proved a valid and fair reason for summary dismissal
No - the employer tendered no oral evidence and failed to prove the allegations of failed training, disclosure of confidential information or failure to use the grievance procedure
The letter of dismissal alleged failure to meet KCAA training requirements, breach of confidentiality and misuse of the grievance mechanism. The Respondent's witness did not appear and no evidence was tendered. The Claimant's training reports rated her 'competent in all aspects' and 'Good overall'. The court held the employer failed to discharge its evidential burden under Sections 43 and 45(2)(a) and (b).
Whether the Claimant was afforded procedural fairness prior to termination
No - there was no notice of contemplated termination, no explanation of grounds and no hearing, contrary to Section 41
Section 41 requires an employer to explain the grounds of termination in a language the employee understands and to hear representations before dismissal. The record disclosed no such process. Following Postal Corporation of Kenya v Andrew K. Tanui, the court found the termination procedurally unfair within Section 45(2)(c).
Whether the unilateral reduction of salary was lawful
No - the reduction from Kshs 400,000 to Kshs 325,000 breached Section 10(5) of the Employment Act
The Respondent's own letter confirmed the downgrade from 1st January 2018. Salary is a significant term of the contract and any change required consultation and written notification under Section 10(5). There was no evidence of consultation or acceptance, so the withheld Kshs 300,000 was awarded.
Whether the Claimant proved discrimination on account of pregnancy
No - the Claimant failed to establish a prima facie case; no medical evidence proved pregnancy at the material time
Although Section 5(7) places the burden on the employer once discrimination is alleged, the employee must first establish the protected ground. The court noted an email from George Kivindyo stating the company had no notification or details of the pregnancy, and no medical records or birth notification were produced, so the claim collapsed.
Legal principles established
#- Section 41 of the Employment Act is mandatory; failure to notify the employee, explain the grounds and hear representations renders termination procedurally unfair
- The employer bears the evidential burden of proving valid and fair reasons for termination under Sections 43 and 45(2) of the Employment Act
- Salary is a fundamental term of the contract; any variation requires the employer to consult the employee and notify the change in writing under Section 10(5) of the Employment Act
- Under Section 5(7) of the Employment Act the burden of disproving discrimination lies on the employer, but only once the employee establishes the ground for discrimination and membership of a protected class
Court orders
#- 1.A declaration that the Claimant's termination from employment was unfair and unlawful
- 2.One month's salary in lieu of notice being Kshs 400,000.00
- 3.Compensatory damages of Kshs 3,200,000.00 being equivalent to eight months' gross salary
- 4.Unpaid salary for May and June 2018 being Kshs 800,000.00
- 5.Salary withheld from January to April 2018 being Kshs 300,000.00
- 6.Outstanding per diem, transport and fuel expenses of 1350 USD
- 7.Interest on the awards at court rates from the date of judgment until payment in full
- 8.Costs of the suit to the Claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Constitution (Section 41 of the Employment Act cited as 'fair labour practices as stipulated under Section 41 of the Constitution'); original first-instance claim
Relief refused
#Kshs 800,000 being the difference in salary she was to earn as Captain
Claimant failed to adduce evidence such as a grading and pay structure demonstrating what was payable to a Captain
Payment of outstanding annual and maternity leave
Claimant did not specify the period claimed and had been awarded full salary for the unpaid months
Damages for discrimination on account of pregnancy
Claimant failed to establish a prima facie case for discrimination; no medical records or birth notification proving pregnancy at the material time
Costs
The Claimant shall have the costs of the suit.
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.
In the final analysis, I enter Judgment in favour of the Claimant against the Respondent in the following manner:
A declaration that the Claimant's termination from employment was unfair and unlawful.
The Claimant is awarded compensatory damages in the sum of Kshs 3,200,000.00 being equivalent to eight (8) months of her gross salary.
the provisions of Section 41 of the Act are mandatory hence it follows that anything short of that process, is unprocedural unfair.
the Respondent was duty-bound to obtain the Claimant's prior approval in writing before downgrading her salary. Evidently, this was a unilateral decision emanating from the Respondent's end.
The Claimant shall also have the costs of the suit.
Issues in the judgment
#The judgment inconsistently dates the CEO Don Smith's email, referring to it as 21st March 2018 in the analysis but as 'email of 21st March 2021' in the section on salary reduction
The pleadings cite Section 41 of the Constitution as the source of fair labour practices, whereas fair labour practices are protected under Article 41 of the Constitution - an apparent drafting error in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyambura v East Africa Safari Air Express Limited (Cause 1399 of 2018) [2024] KEELRC 540 (KLR)", Case Analysis (2024). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/540/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.