Gladys Narocho Okumu v Tidy Site Cleaning Services Ltd & another [2013] KEELRC 811 (KLR)
The bottom line
#A Kenyan court awarded a cleaner unpaid salary, leave and service pay but rejected her unfair termination claim because she could not prove it, and struck out her boss as a respondent.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Respondent, the Managing Director of the 1st Respondent, was properly joined
The 2nd Respondent was improperly joined; his name was struck out as no basis for lifting the corporate veil was advanced.
The 1st Respondent being a limited liability company is a separate legal entity with capacity to sue and be sued in its own name. Courts respect corporate identity unless it is shown the veil is being used to defeat the ends of justice. No reason for joining the Managing Director was advanced, and no such demonstration was made, so his name was struck out.
Whether the Claimant's employment was unfairly terminated
No unfair termination was proved; the claim was dismissed.
Section 47(5) of the Employment Act places the burden of proving unfair termination on the employee. The Claimant alleged verbal termination without cause; the Respondents contended she was suspended and declined to resume duty when recalled. The Court noted the Claimant confirmed in her pleadings she did not wish to continue working for the Respondent, so no unfair termination was established.
Which monetary claims were payable
Salary for June 2012, accrued leave and service pay awarded; underpayment, overtime, public holidays, rest days and house allowance claims dismissed as unproved.
The Claimant was entitled to her earned salary for June 2012, accrued leave and service pay despite the failure of the unfair termination claim. The other heads of claim were not proved to the required standard and were accordingly dismissed. A Certificate of Service was directed to be issued.
Legal principles established
#- The corporate veil is lifted only where it is demonstrated that it is being used to defeat the ends of justice
- In unfair termination complaints, the employee bears the burden of proving the termination was unfair while the employer bears the burden of justifying the grounds for termination
Court orders
#- 1.The name of the 2nd Respondent (1st Respondent's Managing Director) struck out from the proceedings
- 2.Claim for unfair termination and one month's salary in lieu of notice dismissed
- 3.Claims for underpayment, overtime, public holidays, rest days and house allowance dismissed
- 4.Respondent to pay salary for June 2012 of Kshs. 9,867
- 5.Respondent to pay accrued leave of Kshs. 18,418
- 6.Respondent to pay service pay of Kshs. 9,867
- 7.Total award of Kshs. 38,152 to the Claimant
- 8.Respondent to issue the Claimant with a Certificate of Service
- 9.Each party to bear their own costs
- Jurisdiction invoked
- Industrial Court of Kenya jurisdiction under the Labour Institutions Act over employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gladys Narocho Okumu v Tidy Site Cleaning Services Ltd & another [2013] KEELRC 811 (KLR)", Case Analysis (2013). Cause No 1131 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/811/eng@2013-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.