NEBATI LUGAYE ADAMBER V NJOMBE & SONS ESTATE AGENTS LTD & ANOTHER [2013] KEELRC 471 (KLR)
The bottom line
#A Kenyan driver won partial compensation after unfair termination, but his 12-month salary claim failed because of his short tenure and conduct.
What this practically means
#Executive summary
#Key legal issues
#Payment in lieu of notice
Awarded Shs.14,000 as the Respondents admitted no notice was given
The 2nd Respondent admitted under cross-examination that the Claimant was neither given notice nor paid in lieu upon termination. The employer's own admission established this head of claim, entitling the Claimant to one month's salary in lieu of notice.
Overtime
Awarded Shs.49,280 on the presumption of 2 hours' overtime daily for 6 days a week over 11 months
The evidence of both parties established that the Claimant worked beyond ordinary hours, sometimes late and on occasional trips to Othaya. The court presumed an average of 2 hours' overtime for 6 days weekly over 11 months, totalling 528 hours, computed at 1.5 times the hourly rate of Shs.62.20.
Compensation for unfair termination
Rejected despite the absence of a hearing
Although the Claimant was never given a hearing before termination, the court weighed his short tenure of 11 months and his admission of being a financial embarrassment to the employer, concluding he had no reasonable expectation of long-term employment and that compensation of 12 months' salary was not warranted.
Counterclaim for salary advances
Judgment for Respondents for Shs.30,000 as admitted, offset against the Claimant's award
The Claimant admitted owing Shs.30,000 in salary advances. The court entered judgment for that admitted amount rather than the Shs.44,000 claimed, and directed that it be offset against the sums due to the Claimant, leaving a net payable of Shs.33,280.
Legal principles established
#- An employer who admits not giving notice is liable to pay one month's salary in lieu of notice.
- Overtime worked but unpaid is payable at 1.5 times the normal hourly rate, and the court may presume its extent from the evidence.
- Where the salary paid exceeds the statutory minimum wage plus 15% house allowance, an employee has not proved non-payment of house allowance.
Court orders
#- 1.Judgment for the Claimant in the total sum of Kshs.63,280
- 2.Judgment for the Respondent on the counterclaim in the sum of Shs.30,000
- 3.The Respondent shall offset the counterclaim amount and pay the Claimant Shs.33,280 being the difference
- 4.Payment to be made within 30 days failing which the Claimant may execute the decree
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court of Kenya (Employment Act 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NEBATI LUGAYE ADAMBER V NJOMBE & SONS ESTATE AGENTS LTD & ANOTHER [2013] KEELRC 471 (KLR)", Case Analysis (2013). Cause 2012 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/471/eng@2013-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.