Kimemia v Kidde - Fenwal Inc & another (Cause 111 of 2018) [2024] KEELRC 2163 (KLR)
The bottom line
#A Kenyan court ruled that cutting off a remote worker's phone and internet made his dismissal unfair, awarding him four months' salary.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who employed the Claimant
- 2.Whether his contract was terminated following a fair procedure
- 3.Whether termination was on account of valid reason
- 4.Whether he deserves the prayers sought
Key legal issues
#Identity of the employer
The Claimant was employed by Career Directions Limited from 16th November 2015 as a preparatory/recruitment arrangement, and by UTC Climate, Controls & Security [CCS] and its subsidiary Kidde-Fenwal Inc. effective 1st January 2016.
The offer and initial contract were authored by Career Directions, which fixed his terms. The Career Directions contract was a pathway to direct employment. The unsigned 1st January 2016 draft was invalid under Section 9(3) of the Employment Act, but the executed 25th March 2016 contract with CCS/Kidde-Fenwal, back-dated to 1st January 2016, established direct employment with the Respondents.
Fairness of procedure
The disciplinary procedure met the statutory minimum standards of fairness under Sections 41 and 45 of the Employment Act.
The Claimant received a letter to show cause, responded, was invited to a disciplinary hearing with date, venue and attendees disclosed, was advised he could bring a colleague, was heard, and did not complain of inadequate time or seek postponement. The failure to sign minutes did not undermine the fairness of the hearing.
Valid reason for termination
No valid reason was established; the absenteeism complained of was caused by the Respondents' own failure to pay the Claimant's phone and internet bills.
The Claimant was a remote employee whose essential tools were phone and internet, which the Respondents had agreed to reimburse. They had paid prior Airtel invoices without complaint but stonewalled when the bill reached Kshs. 898,324. Suggesting he work from a coffee shop was not adequate facilitation of remote working, so the failure to attend revenue calls was attributable to the Respondents.
Remedies
Compensation of 4 months' salary under Section 49 of the Employment Act; most monetary prayers declined.
The Claimant served about 1 year 7 months on an indeterminate contract, did not cause or contribute to the termination, and secured alternative employment. Leave pay and medical cover were subsumed in acknowledged terminal dues; the unpaid phone bill remained Airtel's civil debt; the general damages claim was a disproportionate 'cash-grab' style claim with no evidential support.
Legal principles established
#- An employer of a remote employee must facilitate remote working by paying the agreed tools-of-work expenses; failure to do so deprives a termination of valid reason
- A communication allowance of Kshs. 20,000 was a personal benefit and not intended for official use where a reimbursement system for phone and internet existed
- A contract not signed by the employee is not a valid contract of employment under Section 9(3) of the Employment Act
- Remedies for employment wrongs must remain proportionate to economic damage sustained
Court orders
#- 1.Declared that termination of the Claimant's contract was unfair and unlawful
- 2.The Respondents shall pay to the Claimant equivalent of 4 months' salary in compensation for unfair and unlawful termination at Kshs. 3,209,036
- 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 jurisdiction under the Employment Act, 2007 (Sections 41, 43, 45, 47 and 49)
Relief refused
#42 days of annual leave pay at Kshs. 1,270,243
Terminal dues already included annual leave, acknowledged as full payment
Unpaid telephone bill at Kshs. 893,324
Claimant never paid Airtel; debt belongs to Airtel to pursue
Reimbursement of medical cover at Kshs. 646,000
No foundation; not raised when terminal dues were acknowledged
General damages at Kshs. 48,135,560
Disproportionate; no evidence of loss of employability
Proper certificate of service showing commencement date as November 2015
Employment by Respondents began 1st January 2016; the Career Directions contract is not enforceable against the Respondents
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 of the Claimants’ contract, was unfair and unlawful.
The Respondents shall pay to the Claimant, equivalent of 4 months’ salary in compensation for unfair and unlawful termination at Kshs. 3,209,036.
Costs to the Claimant.
Interest allowed at court rate, from the date of Judgment, till payment is made in full.
The Court is satisfied that the Respondents, failed to facilitate the Claimant in the performance of his remote work. There was no valid reason established, to justify termination, under Sections 43 and 45 of the Employment Act.
It is clear therefore, that he was contracted by Career Directions Limited from 16th November 2015, until 1st January 2016.
The Claimant was not intended to work from a cofiee shop in the backstreets of Nairobi.
Issues in the judgment
#The terminal dues figure appears inconsistently as Kshs. 1,043,051 and Kshs. 1,043,015 in the judgment
The phone bill figure appears inconsistently as Kshs. 873,000, Kshs. 893,324, Kshs. 898,324 and Kshs. 873,000/898,324 across the pleadings and evidence sections
The employment contract identifies 'United Technologies [UTC] Building and Industries Systems' while the 2nd Respondent is described as United Technologies Corporation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimemia v Kidde - Fenwal Inc & another (Cause 111 of 2018) [2024] KEELRC 2163 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2163/eng@2024-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.