NICHOLAS GITAHI NDEGWA v AGA KHAN UNIVERSITY HOSPITALMr. Mwanthi for Claimant [2013] KEELRC 439 (KLR)
The bottom line
#A Kenyan hospital was ordered to pay Kshs.939,494 to a fired employee because it had no termination or suspension letter proving he had left.
What this practically means
#Executive summary
#Key legal issues
#Whether and when the claimant's employment was terminated
The employment was not terminated on 3rd June 2010 as alleged by the respondent; no termination or suspension letter existed, and the court deemed 2nd February 2012, when the claimant presented himself after acquittal and was not taken back, as the date of termination
The respondent alleged the claimant ceased employment on 3rd June 2010 but produced no documentation, and its case was unsupported by any documentary evidence. The claimant testified he was arrested on 3rd June 2010, released on bond, and told to await communication; after acquittal on 31st January 2012 he reported to work on 2nd February 2012 and was assured by the HR Manager he remained an employee. The court found the claimant was not in suspension and was entitled to full pay up to and including 2nd February 2012.
Whether the termination was unfair
Although no claim for compensation for unfair dismissal was made, the court found the conduct of the respondent amounted to unfair termination as no reasons were provided for the termination, contrary to the Employment Act, 2007
The court observed that no claim for compensation for unfair dismissal was pleaded, yet the respondent provided no reasons for the termination of the claimant's services. The court characterised this as an infringement of Sections 43(1) and 45(1) and 45(2)(a), (b)(i) and (c) of the Employment Act, 2007, though no separate compensation was awarded since none was claimed.
Entitlement to salary arrears, leave and pension contributions
The claimant was awarded 22 months' salary arrears, 4 months' salary in lieu of leave and 22 months' pension and life assurance contributions, but not salary from filing until judgment nor hypothetical increments
On a preponderance of evidence, and given the respondent's admission of the employment particulars and terms of service and its failure to appear at the hearing or file submissions, the court awarded the proved claims: 22 months' salary arrears, 4 months' salary in lieu of leave, and 22 months' contributions to the Staff Pension and Life Assurance Scheme. Salary after 2nd February 2012 was refused because employment was deemed to have ceased then.
Legal principles established
#- An employer who alleges that an employee ceased employment bears the burden of proving it; absent a letter of suspension or termination, the employee remains in employment and unexplained denial of work with continued assurances of employment amounts to unfair termination contrary to Sections 43(1) and 45(1) & 45(2)(a), (b)(i) and (c) of the Employment Act, 2007
- Where the employer offers no tangible defence and presents no termination letter, the claim is proved on a preponderance of evidence
Court orders
#- 1.Payment of 22 months arrears salary at the rate of Kshs.34,664 per month total 762,699
- 2.Payment of 4 months' salary in lieu of leave at Kshs.34,668 per month – 138,672
- 3.Payment of 22 months' contribution towards Staff Pension and Life Assurance Scheme at the rate of Kshs.1,733 per month – Kshs.38,126
- 4.Respondent to pay a total of Kshs.939,494 as itemised in paragraphs 16(a), (b) & (c) of the Memorandum of Claim
- 5.Interest on the decretal amount at court rates from the date of filing the suit until payment in full
- 6.Costs of the suit to the claimant
- Jurisdiction invoked
- Industrial Court of Kenya original jurisdiction (employment and labour relations dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NICHOLAS GITAHI NDEGWA v AGA KHAN UNIVERSITY HOSPITALMr. Mwanthi for Claimant [2013] KEELRC 439 (KLR)", Case Analysis (2013). Civil Case 472 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/439/eng@2013-04-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.