Kisuya v Necst Motors Kenya Limited (Cause E010 of 2023) [2024] KEELRC 1979 (KLR)
The bottom line
#A Kenyan court awarded an employee nearly Kshs. 8 million after finding her dismissal unfair, punishing workplace harassment with the maximum 12 months' 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 the claimant was employed by the respondent and on what terms
- 2.How the contract of service was terminated
- 3.Whether the termination was fair, valid and lawful under sections 43 and 45 of the Employment Act
- 4.What remedies the claimant is entitled to
Key legal issues
#Whether the employment relationship and its termination were established
The claimant was employed on a two-year fixed term contract from 21.12.2022 to 20.12.2024, terminated by letter dated 27.06.2023 with immediate effect for alleged gross misconduct whose particulars were not stated; her notice of constructive resignation was overtaken by the termination letter.
The court found employment proved by the letters of 15.12.2020 and 14.06.2021 as renewed on 21.12.2022. The termination letter of 27.06.2023 took effect immediately for undisclosed gross misconduct. The resignation notice of 12.06.2023 never took effect because the termination superseded it, so the operative severance was the termination letter.
Whether the termination was substantively and procedurally fair
The termination was unfair both substantively and procedurally: no valid reasons were shown, particulars of misconduct were undisclosed, the disciplinary hearing was not adjourned despite medical evidence of illness, no appeal was offered, and the process appeared predetermined.
Without a defence, the respondent failed to justify the termination under sections 43 and 45. The disciplinary invitation appeared dated 02.05.2023 before the show-cause letter of 24.05.2023, suggesting predetermination. Harassment and bullying grievances raised by the claimant were ignored and cannot lawfully ground termination under section 46.
What remedies follow from the unfair termination
The claimant received a declaration of unfair termination, June 2023 salary, 12 months' compensation under section 49, one month's notice pay, leave pay, a certificate of service, and indemnity against KRA PAYE claims; service pay, gratuity, PAYE refund and reinstatement were declined.
The 12 months' compensation was justified by the aggravating factor of proven bullying, intimidation and harassment by the supervisor, over twelve months remaining on the fixed term, a clean record, and denial of procedural justice. Reinstatement was unavailable as the relationship was irreparable and the claimant had intended to resign.
Legal principles established
#- An employer bears the burden, where undefended, of the claimant showing valid and fair reasons for termination; failure to disclose particulars of gross misconduct and denial of adjournment for illness and of a right of appeal render a termination unfair
- Grievances of harassment, bullying and intimidation raised by an employee cannot constitute a lawful reason for termination
Court orders
#- 1.Declaration that the termination was unfair
- 2.Respondent to pay the claimant Kshs.7,941,286.00 less PAYE by 01.10.2024, failing which interest at court rates from the date of judgment until full payment
- 3.Respondent to deliver the certificate of service within 30 days
- 4.Respondent to fully indemnify the claimant with respect to Kenya Revenue Authority claims for failure to remit the claimant's PAYE for 2021
- 5.Respondent to pay costs of the suit
- 6.Deputy Registrar to deliver the case file back to the Machakos Sub-Registry within two days
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, 2007 (sections 35, 43, 45, 46 and 49 invoked)
Relief refused
#Service pay of Kshs.688,000.00
The contract provided for NSSF contributions, so service pay is not payable
Gratuity for 1.5 years at 30% of gross pay (Kshs.247,680.00)
Not pleaded with evidence or submissions to justify it
Remittance or refund of PAYE Kshs.287,289.00
Basis of the claim and due evidence not provided; instead full indemnity against KRA claims granted
Reinstatement of service
Relationship between the parties irreparable and the claimant had intended to resign
Costs
The respondent to pay costs of the suit; the claimant having succeeded, the respondent will pay costs of the claim.
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.
The termination is found to have been unfair as urged for the claimant.
Such valid grievances cannot constitute a lawful reason for termination per section 46 of the Employment Act, 2007.
The Court awards her 12 months as prayed for making Kshs. 6, 604, 600.00.
The respondent to pay the claimant Kshs.7, 941,286.00 less PAYE by 01.10.2024 failing interest at court rates be payable thereon from the date of this judgment until full payment.
The respondent to fully indemnify the claimant with respect to Kenya Revenue claims with respect to failure to remit claimant's PAYE for 2021.
Issues in the judgment
#Judgment alternates gender pronouns for the claimant, describing her as 'her' throughout but stating 'without according him a fair hearing'
Delivery date printed as '31TH JULY 2024', an apparent typographical error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisuya v Necst Motors Kenya Limited (Cause E010 of 2023) [2024] KEELRC 1979 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1979/eng@2024-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.