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ELRCPartially AllowedMemorandum of Claim dated 16th September, 2010 (filed 24th September, 2010)· [2013] KEELRC 204 (KLR)

Albanus Kiendi Kituu v Swan Carriers Limited [2013] KEELRC 204 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
27 August 2013
1,167 words in judgment
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The bottom line

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A Kenyan chef who resigned but never served his notice won Kshs.108,000 in terminal dues, while his larger overtime and wrongful dismissal claims failed for lack of proof.

What this practically means

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Executive summary

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The Claimant, employed as a chef by the Respondent, claimed unpaid salary for August and September, leave pay for 12 years, overtime of Kshs.300,000/=, service gratuity of Kshs.453,600/=, damages for wrongful termination, refund of NHIF dues, a certificate of service, interest and costs. He alleged verbal termination by the Managing Director on accusations of leaking information after his brother-in-law, a turnboy who died in service, was not compensated. The Respondent, through its head of administration, contended the Claimant absconded on 24th August 2006 after being reprimanded, offered terminal dues, and asserted all statutory deductions were remitted. The Respondent produced a union demand letter and a letter from the Claimant's advocates dated 28th August 2006 giving 30 days' notice of termination, which undercut the Claimant's case. The court found the Claimant voluntarily left employment but intended to serve one month's notice which was not served, making the Respondent liable for notice pay. It awarded Kshs.108,000/= comprising August 2006 gross salary of Kshs.12,000/=, one year's leave pay of Kshs.12,000/=, severance for 12 years at 15 days per year totalling Kshs.72,000/=, and one month's notice pay of Kshs.12,000/=. The overtime and NHIF claims failed for want of proof, and the claim for damages for unlawful dismissal was dismissed. The Respondent was ordered to issue a Certificate of Service immediately and to pay costs of the suit.

Key legal issues

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01

Manner of termination of employment

Holding

The Claimant voluntarily left employment by notice, contrary to his claim of verbal termination; only liability for unserved notice attaches to the Respondent

Reasoning

The court compared the Claimant's oral testimony with the letter from Morara Ariithi and Company Advocates dated 28th August 2006 giving 30 days' notice of termination. That letter's contents were never contested. The Claimant's assertion of verbal termination by the Managing Director was therefore found unsustainable, and the court held he resigned voluntarily though he failed to serve the intended notice.

p. 3
02

Overtime and statutory deduction claims

Holding

Both claims failed for want of proof

Reasoning

The Claimant produced no letter during his employment seeking overtime and no NHIF statement evidencing non-remittance of deductions. The burden of substantiating these heads rested on him and was not discharged, so the claims were dismissed.

p. 3
03

Terminal dues on voluntary exit

Holding

Respondent's offered terminal dues awarded with amendments: August 2006 gross salary at Kshs.12,000/=, one year's leave pay, severance at 15 days per year for 12 years, plus one month's salary in lieu of notice

Reasoning

Having found voluntary termination, damages for unlawful dismissal were unavailable. The court nonetheless adopted the Respondent's own offer of terminal dues, correcting the salary figure to the actual gross of Kshs.12,000/= and recalculating severance at the statutory 15 days per completed year, and added notice pay for the unserved notice.

p. 3

Legal principles established

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  • A claimant's testimony inconsistent with contemporaneous documentary evidence not contested is unsustainable
  • Where a party intended to serve one month's notice but did not, the employer is liable for one month's salary in lieu of notice
  • Severance pay for completed years of service is calculated at 15 days' salary per year

Court orders

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  1. 1.Gross salary for the month of August, 2006 in the sum of Kshs.12,000/=
  2. 2.Payment in lieu of one year's leave in the sum of Kshs.12,000/=
  3. 3.Payment of severance pay for 12 years calculated at the rate of 15 days salary for each completed year of service (6,000 x 12) in the sum of Kshs.72,000/=
  4. 4.One month's salary in lieu of notice in the sum of Kshs.12,000/=; total award Kshs.108,000/=
  5. 5.The Respondent to issue the Claimant with Certificate of Service immediately
  6. 6.The Respondent to pay costs of the suit
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Industrial Court

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, "Albanus Kiendi Kituu v Swan Carriers Limited [2013] KEELRC 204 (KLR)", Case Analysis (2013). Memorandum of Claim dated 16th September, 2010 (filed 24th September, 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/204/eng@2013-08-27

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