Katama v Lewa (Cause 108 of 2014) [2014] KEIC 81 (KLR)
The bottom line
#A Kenyan court awarded a sacked teacher salary arrears, notice pay and service pay, but clarified that termination without notice is wrongful, not automatically unfair.
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 termination of the claimant's employment was unfair
- 2.Whether the relief sought ought to issue
Key legal issues
#Whether the termination was unfair or merely wrongful
The termination was wrongful (breach of the Section 36 notice obligation) but not unfair, since it was not based on misconduct, poor performance or incapacity engaging Sections 41, 45 and 46
The employer did not terminate for misconduct, poor performance or incapacity, so the procedural fairness regime of Sections 41 and 45 did not apply, nor any reason under Section 46. The dismissal was simply a failure to serve the contractual/statutory notice required by Section 36, converting the claim into a breach of contract for which salary in lieu of notice is the remedy rather than compensation for unfair termination.
Entitlement to salary in lieu of notice and salary arrears
One month's salary in lieu of notice (Ksh.6,800) and salary arrears for seven months (Ksh.47,600) awarded as claimed
Because the dismissal was wrongful for breach of the obligation to serve termination notice, the claimant was entitled to one month's salary in lieu of notice. She was also unpaid for May, June, July, September, October, November and December 2013, totalling seven months at Ksh.6,800, awarded at Ksh.47,600 as prayed.
Service pay for non-remittance of NSSF dues
Service pay for three years awarded (Ksh.10,200) because the respondent failed to remit NSSF dues for 2012, 2013 and eight months between 2009 and 2011
The claimant proved through NSSF statements and payment vouchers that the employer deducted NSSF contributions monthly but failed to remit them for 2012, 2013 and eight months between 2009 and 2011. The court applied the service pay formula of 15 days' salary per year worked for three years, computing Ksh.6,800 x 15/30 x 3 = Ksh.10,200.
Legal principles established
#- Termination effected without notice contrary to Section 36 of the Employment Act is wrongful, entitling the employee to salary in lieu of notice, even where it is not unfair under Sections 41, 45 and 46
Court orders
#- 1.Judgment entered for the claimant for Ksh.64,600
- 2.Costs of the suit awarded to the claimant
- 3.Interest on the decretal sum awarded
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original employment and labour relations jurisdiction (Employment Act); no constitutional provision invoked
Relief refused
#Compensation for unfair termination (12 months' salary)
The court found the termination was wrongful (breach of Section 36 notice obligation) but not unfair, so Section 41/45 compensation did not arise
General damages for negligence in remitting NHIF dues
Dismissed for the reasons stated and for lack of legal basis
Claim for underpayment (salary of Ksh.23,000 instead of Ksh.6,800)
No evidence led to prove the claimant was paid less than the statutory minimum wage under the applicable General Wage order
Refund of Ksh.5,000 maternity fee
Not awarded in the disposition; no basis articulated
Costs
Judgment entered for the claimant for Ksh.64,600 plus costs and interest
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 court therefore finds that the termination was not unfair but wrongful within the meaning of Section 36 of the Employment Act.
For the findings made above, judgment is entered for the claimant for Ksh.64,600 plus costs and interest.
Issues in the judgment
#Arrears months misdescribed: the court says '9 months' but lists only seven months (May, June, July, September, October, November and December 2013) and computes 7 months' salary
Arithmetic of service pay is inconsistent: Ksh.6800x15/30x3 equals Ksh.10,200 as stated, but 15/30 of a month's salary is half a month, so the formula as described does not yield three half-months' pay
Total awarded (Ksh.64,600) does not reconcile with the stated components (6,800 + 47,600 + 10,200 = 64,600 only if the service pay figure is correct; but 6,800+47,600+10,200 = 64,600 - it reconciles), while the claim for refund of Ksh.5,000 maternity fee and salary of Ksh.23,000 per month is left unaddressed in the disposition
Judgment records that the claimant was 'stationed at Kaloleni Kilifi' although she was employed at the respondent's Riperbi Academy, without explanation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Katama v Lewa (Cause 108 of 2014) [2014] KEIC 81 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/81/eng@2014-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.