Chara v Hantex Garments (EPZ) Limited (Cause 773 of 2016) [2024] KEELRC 1778 (KLR)
The bottom line
#A Kenyan court found 26 workers were unfairly fired because their employer gave no individual hearings or evidence, and ordered compensation.
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 of the Claimant's employment was unfair
- 2.whether the Claimants are entitled to the reliefs sought
Key legal issues
#Whether termination of the claimants' employment was procedurally fair
Termination was procedurally unfair - the Respondent failed to comply with the mandatory provisions of Section 41 of the Employment Act
The Respondent alleged gross misconduct by absenteeism on 5th, 6th and 9th January 2016 but issued no individual show cause letters or hearing invitations; only a general notice was posted. RW-1 admitted no individual notices were sent or posted and no minutes of disciplinary proceedings were produced. Gate passes were recovered on 11/1/2016 before the disciplinary process began, blocking access to the premises.
Whether there was substantive justification for the termination
The Respondent failed to prove the alleged absenteeism; Sections 43(1) and 45(2)(a) were not complied with
The employer bears the burden of justifying the reason for termination. The Respondent claimed the claimants absented themselves on 5th, 6th and 9th January 2016, but produced no attendance registers or clocking-in records, and RW-1 admitted attendance registers existed but were not produced in court. The claimants' evidence that they worked on 5th and 6th January and found the gates locked on 9th January was unrebutted.
Whether the claimants were entitled to notice pay and unpaid annual leave
Both claims allowed; the Respondent failed to prove payment of notice pay or that leave was taken or paid in lieu
Testimony was that only days worked in January 2016 were paid, and the Respondent adduced no evidence of payment of notice pay. On leave, the Respondent failed to avail records pursuant to Section 74(g) of the Employment Act showing leave taken or paid in lieu. Unpaid leave is a continuing injury under Section 90, so the suits were filed within time; leave was awarded only for the years claimed as not extinguished by limitation.
Whether the claimants were entitled to salary arrears for underpayment below the statutory minimum wage
Claim declined for failure to plead and prove the specific Minimum Wage Orders relied upon
The claimants pleaded general underpayment from 2007 to 2016 but did not plead or specify any particular Minimum Wage Orders or Wage Guidelines. The court held that parties must plead their cases with precision and adduce appropriate evidence in proof of pleaded facts; general allegations in pleadings are unacceptable. The claim for underpayment arrears and the related declaration were accordingly refused.
Legal principles established
#- For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness
- Where the employer fails to justify the reason for termination, the termination is deemed unfair; the burden lies on the employer to justify termination and to prove compliance with sections 41, 43 and 45 of the Employment Act
- Parties must plead their cases with precision and adduce appropriate evidence in proof of pleaded facts; general allegations in pleadings are unacceptable
- Unpaid leave dues accruing from one leave-earning year to another constitute a continuing injury under Section 90 of the Employment Act, so the limitation period runs from cessation of the injury (date of termination)
Court orders
#- 1.Declaration that termination of the claimants' employment was procedurally and substantively unfair
- 2.Compensation for unfair termination of employment equivalent to seven months' salary for each claimant
- 3.One month's salary in lieu of notice to each claimant pursuant to Section 35(1)(c) of the Employment Act
- 4.Unpaid annual leave dues for each claimant for the years specified in the judgment schedule
- 5.Awarded sums to be subject to statutory deductions pursuant to Section 49(2) of the Employment Act
- 6.Claimants awarded costs of the consolidated suit
- 7.Interest on the total awarded sum at court rates from the date of judgment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Employment and Labour Relations Court; unfair termination claim founded on the Employment Act, 2007 and Article 41(1) of the Constitution
- Consolidated with
- Cause No. 774 of 2016, Cause No. 775 of 2016, Cause No. 776 of 2016, Cause No. 777 of 2016, Cause No. 778 of 2016, Cause No. 779 of 2016, Cause No. 780 of 2016, Cause No. 781 of 2016, Cause No. 782 of 2016, Cause No. 783 of 2016, Cause No. 784 of 2016, Cause No. 785 of 2016, Cause No. 786 of 2016, Cause No. 787 of 2016, Cause No. 788 of 2016, Cause No. 789 of 2016, Cause No. 790 of 2016, Cause No. 791 of 2016, Cause No. 792 of 2016, Cause No. 793 of 2016, Cause No. 794 of 2016, Cause No. 795 of 2016, Cause No. 796 of 2016, Cause No. 797 of 2016, Cause No. 798 of 2016
Relief refused
#Salary arrears arising from alleged salary underpayments below the statutory minimum wage
The claimants did not plead or refer to any particular Minimum Wage Orders in support of the alleged underpayments, and made only general allegations in their pleadings
Declaration that the claimants had been underpaid during the period of employment
Same evidential failure - no particular Minimum Wage Orders pleaded or proved
Unpaid salary up to the time a termination letter is issued (as prayed by the lead Claimant)
Not among the orders granted in the disposition; the court awarded notice pay, leave dues and seven months' compensation only
Twelve months' salary as compensation for unfair termination (as sought)
Court awarded the equivalent of seven months' salary instead, having considered the manner and circumstances of termination
Costs
The claimants are awarded costs of the consolidated suit and interest on the total awarded sum at court rates from the date of the judgment
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.
Consequently, and having considered written submissions filed by Counsel for both parties herein, judgment is hereby entered for the claimants against the Respondents
The claimants are awarded costs of the consolidated suit and interest on total awarded sum. Interest shall be calculated at court rates from the date of this judgment.
I find and hold that termination of the claimants' employment by the Respondent was procedurally and substantively unfair, and I so declare.
For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness.
Making of general allegations in pleadings is totally unacceptable.
The awarded sums shall be subject to statutory deductions pursuant to Sections49(2) of the Employment Act.
Issues in the judgment
#Arithmetic and typographical errors in the award schedule: for Christine Atieno Otieno (Cause No. 784 of 2016) one year's leave is awarded kshs. 65,555 and the listed components (9,365 + 65,555 + 54,555) do not total the stated kshs. 81,475
Internal inconsistency in the hearing/consolidation narrative: the 12/3/2019 agreement grouped the causes into four lead files, but on 27/11/2019 all causes 773-798 were consolidated, and the judgment is styled with Cause No. 773 of 2016 as lead file
The causes heard together (773-798, 26 causes) exceed the 24 causes referenced in the 12/3/2019 consent, and the judgment disposition lists 26 claimants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chara v Hantex Garments (EPZ) Limited (Cause 773 of 2016) [2024] KEELRC 1778 (KLR)", Case Analysis (2024). Cause No. 773 of 2016 (lead file, consolidated with Causes Nos. 774 - 798 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1778/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.