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ELRCPartially AllowedCause 828 of 2012· [2013] KEELRC 380 (KLR)

JOYCE NDULU V BARAKA HOTEL [2013] KEELRC 380 (KLR)

Industrial Court of Kenya
9 May 2013
MNMathews N. Nduma
788 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant, Joyce Ndulu, was employed by the respondent Baraka Hotel as a housekeeper from 1st June 2005 until her summary dismissal on 30th January 2012, earning a final monthly salary of Kshs.9,000. She claimed salary arrears for January 2012, one month's salary in lieu of notice, underpayment of salary from 2005 to dismissal, and compensation for unlawful dismissal or reinstatement. She alleged she was dismissed for demanding the statutory minimum wage, was denied sick leave for pneumonia in December 2011, never received annual leave or house and medical allowances, and was underpaid in her final month. The respondent failed to enter appearance despite service, and the matter proceeded unopposed by written submissions, with oral evidence dispensed with. The court found the pleadings uncontroverted and held that the claimant was dismissed for asserting her right to better terms of service, which is not a lawful reason to terminate employment, and that she was not heard before dismissal. However, her claim for underpayments failed because she made bare allegations without proving the amounts due, and she produced no pay slip. The court awarded Kshs.9,000 in lieu of notice, Kshs.850 in unpaid January 2012 salary arrears, and 8 months' salary (Kshs.72,000) as compensation for unfair dismissal, totalling Kshs.81,850, plus costs of the suit. The award was delivered by Principal Judge Mathews N. Nduma on 9th May 2013 in Nairobi.

Key legal issues

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01

Lawfulness of summary dismissal

Holding

Dismissal was unfair - no valid reason and no hearing

Reasoning

The pleadings were uncontroverted as the respondent failed to enter appearance. The claimant established on a balance of probability that she was dismissed for demanding payment of the statutory minimum wage, which is not a lawful reason for termination. She was also not allowed to state her case before dismissal, breaching fair procedure. Her clean record, evidenced by the Certificate of Service, supported the award of 8 months' salary as compensation.

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02

Burden of proof on underpayment claim

Holding

Underpayment claim failed for want of proof

Reasoning

Although the claimant alleged her pay was below the statutory minimum throughout employment, she did not indicate the amounts she was entitled to or produce a pay slip to show what her salary included. The court held that he who alleges must prove, and the claimant failed to prove on a preponderance of evidence that she was entitled to more than she was paid.

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Legal principles established

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  • Dismissal for asserting a right to better terms of service is not a lawful reason to terminate employment
  • He who alleges must prove his claim; unproved claims fail
  • An employer who defaults in filing a response and does not allow an employee to be heard has no valid reason for summary dismissal

Court orders

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  1. 1.Payment of Kshs.9,000 being one month salary in lieu of notice
  2. 2.Payment of Kshs.850 being unpaid salary arrears for January 2012
  3. 3.Payment of Kshs.72,000 being 8 months' salary as compensation for unfair dismissal
  4. 4.Claimant awarded costs of the suit
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Cause filed under 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, "JOYCE NDULU V BARAKA HOTEL [2013] KEELRC 380 (KLR)", Case Analysis (2013). Cause 828 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/380/eng@2013-05-09

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