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ELRCPartially AllowedMemorandum of Appeal dated 11th September, 2023

Kiratu v Devkan Enterprises (Appeal E171 of 2023) [2024] KEELRC 2831 (KLR)

Employment and Labour Relations Court
14 November 2024
2,682 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that firing an employee without a written notice or hearing is unfair, awarding the worker Kshs 141,330 in compensation and costs.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court (Appeals Division, Nairobi) against the judgment of Honourable C. Mburu (PM) delivered on 18th August 2023, which dismissed the Appellant's claim for unfair termination. The appeal was disposed of by written submissions, the Respondent having ceased to participate after its advocates came off record. The Appellant, employed from 2019, alleged verbal termination in July 2021 without terminal dues when the Respondent mechanised its packaging operations. The Respondent contended she and colleagues absconded duty after rejecting new shift arrangements. The Court, guided by the settled duty of a first appellate court to re-evaluate evidence, found that the Respondent's case alternated incoherently between redundancy and absconding, that no written redundancy notice under section 40(1)(b) of the Employment Act was issued, that no evidence (attendance registers, call records or witnesses) proved absconding, and that section 41's mandatory procedural requirements - a show cause letter and disciplinary hearing - were violated. The termination was therefore both substantively and procedurally unfair, and the trial court's dismissal was reversed. On reliefs, the Court awarded one month's salary in lieu of notice (Kshs 20,190/=) and six months' salary (Kshs 121,140/=) as compensation under section 49, considering her short service as an unskilled general worker, plus a certificate of service and costs of the appeal and trial court. The accrued leave claim failed for lack of proof and a CBA clause barring leave cumulation. Total award: Kshs 141,330/=, subject to statutory deductions, with interest from the date of judgment.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred in finding that the termination of the appellant was not unlawful and unfair and therefore dismissing the suit
  2. 2.Whether the appellant was entitled to the reliefs sought

Key legal issues

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01

Whether the termination of the Appellant's employment was substantively and procedurally unfair

Holding

The termination was both substantively and procedurally unfair; the Respondent failed to prove absconding on a balance of probabilities, issued no written redundancy notice under section 40(1)(b), and violated section 41 by not issuing a show cause letter or holding a disciplinary hearing.

Reasoning

The Respondent alternated between redundancy and absconding as grounds, produced no attendance registers, call records, or witnesses among employees said to have resumed work. No written redundancy notification under section 40(1)(b) was issued. No show cause letter or disciplinary hearing was afforded under section 41, which is mandatory. The employer bore the burden of justifying termination, which it failed to discharge.

p. 5
02

Whether the Appellant was entitled to the reliefs sought

Holding

The trial court erred in denying reliefs; the Appellant was awarded one month's salary in lieu of notice, six months' salary as compensation for unfair termination, a certificate of service and costs, but the accrued leave claim failed.

Reasoning

Having found the termination unfair, the court assessed entitlements under sections 35, 28 and 49 of the Employment Act. Notice pay was statutory; compensation was set at six months considering her short service as an unskilled general worker; the leave claim failed for lack of proof and a CBA clause barring cumulation of leave.

p. 5

Legal principles established

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  • A first appellate court must re-evaluate, re-assess and reanalyse the evidence on the record and determine whether the trial court's conclusions stand, giving reasons either way
  • Termination requires both substantive and procedural fairness
  • Section 41 of the Employment Act is mandatory and non-compliance renders any resulting termination unfair
  • Dismissal on account of absconding must be preceded by evidence of reasonable attempts to contact the employee and a show cause letter
  • Compensation under section 49(4)(b) must be assessed judiciously, considering length of service and skills of the employee

Court orders

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  1. 1.One month salary in lieu of notice of Kshs 20,190/=
  2. 2.Accrued leave: NIL
  3. 3.Six months' salary as compensation for unfair termination of Kshs 121,140/=
  4. 4.Certificate of Service to be issued
  5. 5.Costs of the appeal and costs in the trial court awarded to the Appellant
  6. 6.Total award of Kshs 141,330/= subject to taxes and statutory deductions, with interest from the date of judgment until payment in full

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Magistrates' Court
Jurisdiction invoked
First appellate jurisdiction over appeals from the trial court (Employment and Labour Relations Court, Appeals Division)

Relief refused

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Prayer for accrued leave days

The Appellant did not demonstrate the leave days taken or pending, and the CBA provided that leave is not cumulative

p. 5

Costs

The Appellant is awarded costs of this appeal as well as costs in the trial Court.

Quotable passages

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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 conclusion the Appellant's termination was both substantively and procedurally unfair and unjustified and the trial court based its finding on irrelevant issues that were not before it and ended up with an error of judgment by dismissing the appellant's claim.
p. 5Unfair termination
The Respondent did not demonstrate that it commenced any disciplinary action against the Claimant under Section 41 of the Employment Act after the appellant allegedly failed to report on duty.
p. 4Procedural fairness - section 41
The court finds that Appellant was never issued with any written notification as required under Section 40(1) (b) of the Employment Act.
p. 4Redundancy procedure
In the upshot the Appeal partially succeeds as follows;
p. 5Final orders
a. One- month salary in lieu of notice………………………Kshs 20,190/= b. Accrued leave………………………………NIL c. 6 months' compensation….. Kshs 121,140/= d. Certificate of Service e. Costs of the suit Total ……………………………KSHS 141,330/= this award shall where applicable be subject to taxes and statutory deductions but shall attract interest from the date of judgment until payment in full.
p. 6Final orders and award
It is so ordered.
p. 6Disposition

Issues in the judgment

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minor

The judgment inconsistently dates the trial court's judgment, describing it as delivered on 18th August 2023 in the grounds of appeal but as 'Judgment dated 18/9/2023' in the prayer

minor

The judgment cites 'Section 45(sic)' of the Employment Act in summarising counsel's submissions, an apparent error in the record of submissions

minor

The payslip relied on to establish salary is variously described as April 2020 and April 2021 in different paragraphs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kiratu v Devkan Enterprises (Appeal E171 of 2023) [2024] KEELRC 2831 (KLR)", Case Analysis (2024). Memorandum of Appeal dated 11th September, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2831/eng@2024-11-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.