Patrick Mbisi Muthengi v South Sloux Farms Limited & 2 others [2013] KEELRC 567 (KLR)
The bottom line
#A Kenyan court held a worker who abandoned his job wasn't unfairly dismissed, but his employer still had to pay service pay and refund illegal NSSF deductions.
What this practically means
#Executive summary
#Key legal issues
#Nature of the Claimant's employment
The Claimant was a regular employee for 10 years, not a casual employee
The Claimant worked for 10 years on a monthly salary of Kshs. 24,000, held a job identification card, was paid monthly, and had a 3-month probation period followed by confirmation as permanent. These facts satisfied the Court that he was a regular employee who could not be described as casual under any description of the law.
Fairness of termination
Termination was occasioned by the Claimant's own desertion and was therefore not unfair
The Court accepted the Respondents' evidence that the Claimant deserted work after being assigned a different Lorry, leaving on his own volition. Being assigned a different Truck did not amount to redundancy or abolition of the driving job, as other drivers continued working. The Claimant's account of being locked out was not supported by the record.
Severance pay
Severance pay was not awardable because there was no redundancy
The Claimant's exit was not preceded by a redundancy situation; his position was not abolished and other drivers continued working. Severance pay under Section 40 of the Employment Act 2007 is therefore not awardable. The Court observed he may have confused service pay with severance pay.
NSSF deductions and registration
The Claimant's claim for refund of NSSF deductions was credible; Respondents to refund all deductions made in the name of NSSF prior to 21st March 2011
Payslips from 2009 and 2010 showed NSSF deductions although the Claimant was only registered with NSSF on 21st March 2011, with a false employment date of 1st February 2011 given to the Fund. The Respondents failed to disclose NSSF records during Ministry of Labour interventions. The Claimant may pursue possible prosecution for violation of the N.S.S.F Act, Cap 258.
Service pay despite absence of express pleading
Service pay granted at 15 days' salary per completed year of service, amounting to Kshs. 138,461.50, notwithstanding that service pay was not expressly pleaded
Section 35 of the Employment Act made the Claimant eligible for service pay after 10 years of service. The Court held that failure to expressly plead service pay should not result in withdrawal of a benefit conferred by law on the employee. It granted 15 days' salary per year completed, and offset the loan balance of Kshs. 105,000 against it.
Counterclaim for loan balance
The counterclaim of Kshs. 105,000 was allowed as undefended and offset against the service pay award
The Claimant conceded he owed a loan balance of Kshs. 105,000 at the date of desertion and was willing to offset it against any award. The counterclaim was undefended, so the Court allowed it and offset it against the service pay of Kshs. 138,461.50, leaving Kshs. 33,461 payable to the Claimant.
Legal principles established
#- An employee with 10 years of continuous regular employment cannot by any description of the law be termed a casual employee
- Severance pay under Section 40 of the Employment Act is only awardable where there is a redundancy situation
- An employee is eligible for service pay under Section 35 of the Employment Act, and the Court may grant it even where not expressly pleaded
- An employee who seeks the Court's assistance must provide cogent evidence supporting each claim
Court orders
#- 1.A declaration that termination was occasioned by the Claimant's desertion and was therefore not unfair
- 2.The Respondents to refund the Claimant all deductions made in the name of the N.S.S.F prior to 21st March 2011
- 3.The Claimant at liberty to follow up the NSSF refund matter with the N.S.S.F for possible prosecution of the Respondents for violation of the N.S.S.F Act
- 4.The Claimant granted service pay at 15 days' salary for each completed year of service, amounting to Kshs. 138,461.50
- 5.The counterclaim allowed for Kshs. 105,000
- 6.The sum of Kshs. 33,461 after offsetting to be paid by the Respondents to the Claimant within 30 days of delivery of the Award
- 7.No order on the costs
- Jurisdiction invoked
- Employment and labour relations dispute referred to the Industrial Court (Issue in Dispute: Unfair and Unlawful Termination)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Mbisi Muthengi v South Sloux Farms Limited & 2 others [2013] KEELRC 567 (KLR)", Case Analysis (2013). Cause Number 1608 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/567/eng@2013-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.