DAVID MUTHOKA KYUNGU V ATHUSI BAR AND RESTAURANT [2012] KEELRC 144 (KLR)
The bottom line
#A Kenyan court ruled a bar unfairly sacked its accountant for complaining about low pay, awarding him Ksh.128,000 and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was fair and lawful
Termination was unfair; the respondent failed to prove the pleaded reason and the termination letter stated no reason, breaching Sections 43 and 46(h) of the Employment Act.
The respondent pleaded that termination followed abusive language and uncooperative attitude but led no evidence to prove it. The termination letter itself did not state any reason. The claimant had raised a genuine grievance about low pay and requested a transfer, and it was unfair labour practice to impose compulsory leave and termination flowing from that genuine complaint, contrary to Section 46(h).
Compensation for unfair termination
Claimant awarded 12 months' gross salary compensation of Ksh.96,000/= as prayed.
Having found the termination unfair, the court awarded the maximum 12 months' gross salary compensation claimed, computed at the claimant's monthly wage of Ksh.8,000/=, consistent with the claimant's entitlement upon a finding of unfair termination.
Service pay
Claimant awarded service pay of Ksh.32,000/= as claimed, being entitled to service pay for every year worked under Section 35(5).
Section 35(5) of the Employment Act, 2007 entitles an employee to service pay for every year worked. The court found the claimed Ksh.32,000/= reasonable and granted it as prayed in the memorandum of claim.
Pay in lieu of untaken annual leave
Claim failed for lack of sufficient evidence.
The respondent had a duty to maintain leave records but did not produce them; however, the claimant also did not testify to support this head of claim. In the absence of sufficient evidence either way, the court found the claim unproven and dismissed it.
Legal principles established
#- Under Section 43 of the Employment Act, 2007, the employer bears the burden of proving the reason for termination, and failure to do so renders the termination unfair.
- A well-founded complaint by an employee cannot constitute a fair reason for dismissal under Section 46(h) of the Employment Act, 2007.
- An employee is entitled to service pay for every year worked under Section 35(5) of the Employment Act, 2007.
Court orders
#- 1.Declaration that the termination of the claimant's employment by the respondent was unfair
- 2.Respondent to pay the claimant Ksh.128,000/= plus interest at court rates till full payment
- 3.Respondent to pay the costs of the cause
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act, 2007 (Industrial Court jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DAVID MUTHOKA KYUNGU V ATHUSI BAR AND RESTAURANT [2012] KEELRC 144 (KLR)", Case Analysis (2012). Cause No 686 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/144/eng@2012-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.