Jason v Bobmil Industries Ltd (Cause 409 of 2019) [2024] KEELRC 2504 (KLR)
The bottom line
#A Kenyan court ruled an employer couldn't skip discipline and simply pay notice when alleging misconduct, making the termination unfair and awarding Kshs. 1.4 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair for want of due process under section 41 and valid reasons under section 43 of the Employment Act
The termination was unfair - no disciplinary process was undertaken despite alleged misconduct, and the pleaded grounds of intimidation were not established
The respondent's own witness confirmed no disciplinary process was followed, citing fear of the claimant's gun. The court found the claimant's evidence that he was hired as a gun holder unrebutted. The termination letter cited only contractual clause 13(a) without misconduct particulars, and the pleaded case alleging intimidation deviated from that position. Being bound by its pleadings and having abandoned the contractual clause, the respondent failed both procedural and substantive fairness under sections 41 and 43.
Appropriate compensation for unfair termination
Three months' gross salary (Kshs. 555,000) as compensation, in addition to undisputed terminal dues
The court considered the section 49 factors: over 3 years of service, desire to continue in employment, entitlement to reject the partly-deducted cheque, and the respondent's offer of March salary and three months' notice pay as a mitigating factor. Three months' salary was found to meet the ends of justice rather than the 12 months claimed.
Entitlement to lost years to retirement, service pay and certificate of service
Lost-years claim and service pay declined; certificate of service awarded
No contractual or policy provision for retirement at 65 was proved and no diminished earning capacity shown. The claimant was an NSSF member, excluded from service pay under section 35 of the Employment Act. A certificate of service is a statutory entitlement and was awarded.
Legal principles established
#- An employer may not conceal alleged poor performance or misconduct by invoking a contractual termination-in-lieu-of-notice clause; it must subject the employee to a disciplinary process, and unqualified soft landing taints the termination
- A party is bound by its pleaded case, and where pleaded grounds of misconduct are not established and the contractual termination clause is abandoned, termination is unfair for want of due process and valid reasons
Court orders
#- 1.Declaration that the termination was unfair as was wrongful
- 2.Respondent to pay the claimant Kshs.1,402,917.00 (less PAYE) by 01.12.2024 failing interest at Court rates from the date of judgment until payment in full
- 3.Respondent to pay claimant's costs of the suit
- 4.Respondent to deliver the certificate of service by November 1, 2024
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 44(4), 35 applied)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jason v Bobmil Industries Ltd (Cause 409 of 2019) [2024] KEELRC 2504 (KLR)", Case Analysis (2024). Not stated in judgment (Industrial Cause filed 25.06.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2504/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.