Theresiah Wayua King’oo v Nodor Kenya Epz Limted [2013] KEELRC 696 (KLR)
The bottom line
#A Kenyan court awarded a dismissed worker only Kshs.80,000 because she could not prove her larger claims—documentation and evidence decide employment cases.
What this practically means
#Executive summary
#Key legal issues
#Payment in lieu of leave for 5 years
Claim dismissed; the claimant took her leave and was paid for untaken leave days
The claimant admitted under cross-examination that she took leave every year, signed leave acknowledgment forms for 2009, took 14 days leave in 2010 and was paid Kshs.2,160/= for untaken leave days as reflected in her last payslip. Her oral evidence contradicted her pleaded claim, so she failed to discharge the burden of proof.
Travelling allowance
Claim dismissed for lack of proof and absence of legal or contractual basis
The claim was inconsistently computed (shs.100 per day in testimony, shs.150 per day in submissions) with no explanation of how the total of Kshs.209,000/= was arrived at. No evidence proved the daily expenditure, and the benefit was neither provided for by law nor in the employment contract.
House allowance
Claim dismissed; contract consolidated allowances into basic salary
Section 31 of the Employment Act requires an employer to provide housing or a reasonable house allowance, but section 31(2)(a) excludes employees whose contracts consolidate a rent element in the basic wage. The claimant's contract expressly provided that her salary included all allowances such as house allowance and bonus.
Damages for unfair termination
Termination was unfair; claimant awarded 4 months' salary, Kshs.80,000/=
The respondent neither gave reasons for the termination nor afforded the claimant a hearing, contrary to sections 41, 43 and 45 of the Employment Act. The common law authorities relied on by the respondent (including the Povono case) applied common law principles displaced in Kenya by the Employment Act 2007, which commenced on 2nd June 2008. Damages of 4 months' salary were considered reasonable given the circumstances, payments made, length of service of just under 5 years, and the claimant's failure to justify a higher figure.
Legal principles established
#- In Kenya the common law entitlement to terminate employment without reason has been displaced by statute; an employer must give valid reasons and follow fair procedure under ss.41, 43 and 45 of the Employment Act.
- Under section 31(2)(a) of the Employment Act, an employee whose contract consolidates a housing element into the basic wage is not entitled to a separate house allowance.
Court orders
#- 1.The claim for shs.403,724/= is dismissed
- 2.The Claimant is awarded damages for unfair termination in the sum of Kshs.80,000/=
- 3.There shall be no order for costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over a wrongful dismissal and terminal dues claim under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kioko & 2 others v Safaricom Limited (Cause 233 of 2017) [2023] KEELRC 2399 (KLR)[2023] KEELRC 2399 (KLR)4 Oct 2023
Cite this brief
#Cite this brief
Caselaw, "Theresiah Wayua King’oo v Nodor Kenya Epz Limted [2013] KEELRC 696 (KLR)", Case Analysis (2013). Memorandum of Claim dated 15th December 2011 (Industrial/ELRC cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/696/eng@2013-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.