Kingi v Sarol Holdings Limited (Cause 278 of 2014) [2014] KEIC 93 (KLR)
The bottom line
#A Kenyan employer who dismisses staff without a hearing and without proof must pay damages, even where theft is alleged.
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 by RW1 was unfair
- 2.Whether the reliefs sought ought to issue
Key legal issues
#Procedural fairness of the termination
The termination was procedurally unfair because the claimant was never accorded a hearing before dismissal, breaching Sections 41 and 45 of the Employment Act.
RW1 admitted on cross-examination that he never gave the claimant a hearing on the misconduct alleged in the termination letter. Section 41 mandates an oral hearing before dismissal for misconduct, and Section 45 renders termination unfair absent a fair procedure. RW1 said he did not know the requirement, but ignorance of the statute does not cure the breach. The procedural breach alone rendered the termination unfair.
Substantive validity of the reason for termination
No valid and fair reason was proved; the allegations of theft and fraud of Ksh.50,000 were unsupported by evidence and the defence witnesses contradicted themselves.
None of the defence witnesses had evidence proving that the claimant received Ksh.50,000 from Mr. Garney and stole it. The witnesses gave inconsistent figures for the outstanding bill, with only a Ksh.27,000 invoice of unknown authorship produced. There was no proof that the claimant authorized the release of the guests or received Mpesa payment. The claimant was not even present when the guest left without paying.
Reliefs payable on unfair termination
The claimant was awarded one month's salary in lieu of notice, salary for 24 days worked in March 2014, pro-rata leave, and 9 months' gross salary as compensation for unfair termination.
Under Section 49 of the Employment Act, an unfairly dismissed employee is entitled to notice pay, accrued benefits and compensation. The court awarded Ksh.35,000 notice pay, Ksh.28,000 for March 2014, Ksh.17,500 pro-rata leave, and Ksh.315,000 (9 months' gross salary) as compensation, taking into account the dual procedural and substantive unfairness but capping compensation below the statutory maximum given only 9 months of employment.
Legal principles established
#- Termination of employment is unfair unless the employer proves both a valid and fair reason and that a fair procedure, including a hearing under Section 41, was followed; the burden of proving the reasons for termination rests on the employer.
Court orders
#- 1.Judgment entered for the claimant in the sum of Ksh.395,500
- 2.Costs of the suit to the claimant
- 3.Interest on the decretal sum
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 (Sections 41, 43, 45 and 49)
Relief refused
#12 months' salary as maximum compensation for unfair termination
The court awarded only 9 months' gross salary as compensation, holding that the maximum 12 months was not reasonable given the short duration of employment and the time elapsed
Costs
Judgment entered for the claimant in the sum of ksh.395,500 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.
termination of employment is unfair unless the employer proves that he followed a fair procedure before terminating the contract
Consequently, the court finds and holds that the termination of the claimant's employment on 22/3/2014 was unfair within the meaning of Section 45 of the Employment Act.
For the aforesaid findings and reasons, judgment is entered for the claimant in the sum of ksh.395,500 plus costs and interest.
Issues in the judgment
#The judgment states the claimant's employment commencement date inconsistently - the contract date and CW1's testimony say 20/6/2013 while the analysis paragraph says 26/6/2013
The quantum of the guest's unpaid bill is stated inconsistently (Ksh.50,000 in the claim, Ksh.47,000 by RW2, Ksh.36,000 and Ksh.27,000 elsewhere)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kingi v Sarol Holdings Limited (Cause 278 of 2014) [2014] KEIC 93 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/93/eng@2014-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.