Shem Maingo v Kema (EA) Limited [2015 eKLR

Key Facts

Issues

• The Court needed to determine whether the Respondent's termination of the Claimant's employment was in accordance with the law and fair, considering the procedures followed and the reasons provided.
• The Court had to assess whether the Claimant's absence from work was a case of desertion as alleged by the Respondent or if he was unlawfully terminated, based on the evidence provided.
• The Court needed to evaluate the validity of the Respondent's counterclaim, including claims for a laptop and salary in lieu of notice, based on the evidence presented.
• The Court was required to determine the exact monthly salary of the Claimant at the time of his termination, considering conflicting evidence from both parties.
• The Court had to decide if the Claimant was entitled to the requested remedies such as six months' salary in compensation for unfair termination and other financial claims.

Holdings

• The termination was found to be procedurally unfair as the Respondent failed to follow the required procedure under Section 41 of the Employment Act, 2007, despite having a valid reason (conflict of interest due to the Claimant's involvement in a competitor company).
• The court adopted the Claimant's stated gross monthly salary of Kshs. 234,845 as the Respondent's evidence was inconsistent and inconclusive.
• The Respondent's counterclaims for a laptop (Kshs. 85,000) and 3 months' salary in lieu of notice (Kshs. 150,000) were dismissed due to lack of evidence.
• The Claimant was awarded 6 months' salary in compensation for unfair termination (Kshs. 1,409,070), 1 month's salary in lieu of notice (Kshs. 234,845), July 2012 salary (Kshs. 234,845), and prorated leave pay (Kshs. 95,895), totaling Kshs. 1,974,655.

Remedies

• The Claimant received one (1) month's salary in lieu of notice, amounting to Kshs.234,845.00. This award was based on the Court's determination that the termination lacked proper procedural compliance under the Employment Act.
• The Claimant was granted salary for the month of July 2012, totaling Kshs.234,845.00. This was admitted by the Respondent as part of the Court's final award.
• The Claimant was awarded six (6) months' salary in compensation for the unfair termination of his employment. This amount, Kshs.1,409,070.00, was calculated based on his length of service and the Court's finding that the Respondent had a valid but procedurally unfair reason for termination.
• The Claimant was awarded prorated leave pay for the year 2012, calculated as Kshs.95,895.00 (234,845/30 × 1.75 × 7). This reflects his entitlement to leave pay for the period worked in 2012.

Monetary Damages

Legal Principles

• The court applied the 'balance of probability' standard to assess whether the Respondent's grounds for termination were valid. It concluded that the Respondent did not meet this threshold, as the evidence was insufficient to establish a conflict of interest.
• The court held that under Section 43 of the Employment Act, 2007, the employer bears the burden of demonstrating a valid reason for termination. The Respondent failed to provide sufficient evidence to meet this requirement, leading to a finding of procedural unfairness.
• The court emphasized that termination for misconduct (Section 41 of the Employment Act) requires adherence to procedural fairness, including explaining the reason to the employee, allowing representation, and hearing their defense. The Respondent failed to comply with these requirements, resulting in a procedurally unfair termination.

Precedent Name

• Paul Waigiri Muriuki Vs Nairobi Water and Sewerage Company Ltd
• Geoffrey Muringi Mwangi Vs Rwaken Investments Limited

Cited Statute

Judge Name

Passage Text

• 26. There was no evidence that the Respondent followed any of the conditions set out under Section 41 of the Act and the Court therefore finds that the termination of the Claimant's employment was procedurally unfair.
• 27. Having found the termination of the Claimant's employment unfair for want of due procedure, I award him six (6) months salary in compensation. ... The award amount shall attract interest at court rates from the date of the award until payment in full.
• 24. I have examined the circumstances surrounding the Claimant's termination in this light and find that the Respondent had reasonable grounds to believe that the Claimant was directly involved in a company whose activities were in competition with the Respondent. The Respondent therefore had a valid reason for terminating the Claimant's employment.