Albanus Kiendi Kituu v Swan Carriers Limited [2013] KEELRC 204 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Manner of termination of employment
The Claimant voluntarily left employment by notice, contrary to his claim of verbal termination; only liability for unserved notice attaches to the Respondent
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.
Overtime and statutory deduction claims
Both claims failed for want of proof
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.
Terminal dues on voluntary exit
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
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.
Legal principles established
#- 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
#- 1.Gross salary for the month of August, 2006 in the sum of Kshs.12,000/=
- 2.Payment in lieu of one year's leave in the sum of Kshs.12,000/=
- 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.One month's salary in lieu of notice in the sum of Kshs.12,000/=; total award Kshs.108,000/=
- 5.The Respondent to issue the Claimant with Certificate of Service immediately
- 6.The Respondent to pay costs of the suit
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Industrial Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.