Sensations Limited v Carlene Kalunde Lombo [2013] KEELRC 833 (KLR)
The bottom line
#A Kenyan court ruled an employee who resigned without notice owed her employer one month's salary, but a training-bond clause signed after the trip could not be enforced.
What this practically means
#Executive summary
#Key legal issues
#Liability for one month's salary in lieu of notice
The Respondent is liable to pay one month's salary in lieu of notice under section 35(1)(c) of the Employment Act as read with section 36
The letter of appointment only provided for termination by the employer and did not address employee resignation. Section 3(1) of the Employment Act applies the Act to all contracts of service and section 3(6) makes the Act's terms minimum terms, so section 35(1)(c) with section 36 govern notice on termination. The Respondent's defence that no notice was payable was held to be without merit.
Retrospective application of the training bond clause
The additional clause was valid but did not apply to the Greece trip as it was signed after the trip
The clause was signed on 24th June 2011, after the 1st–6th June 2011 Greece trip, and contained no indication of retrospective application. The Claimant failed to attach the alleged earlier South Africa clause or explain why a new signature was needed if one already existed. The clause was framed as a general addition to the employment contract, not trip-specific, so awareness before travel was not proved.
Overstated commission and shoes balance
Refund of Kshs.21,483 commission awarded as un-denied; Kshs.3,721 shoes balance awarded on admission
The Respondent did not deny the commission claim; she only alleged she did not compute it, and did not deny part-payment of Kshs.5,365 or the amount demanded. The shoes balance of Kshs.3,721 was expressly admitted in the Response with a willingness to pay, so judgment was entered on admission for both sums.
Legal principles established
#- The Employment Act sets minimum terms and conditions of employment which apply to all employees under a contract of service, so statutory notice requirements under section 35(1)(c) as read with section 36 apply notwithstanding the contract's silence on employee resignation
- An additional contractual clause signed after the event in question cannot be applied retrospectively absent clear indication of retrospective application
Court orders
#- 1.Award of Kshs.32,000 being one month's salary in lieu of notice
- 2.Dismissal of the claim for refund of the cost of the trip to Greece
- 3.Award of Kshs.21,483 as refund of overstated commission
- 4.Award of Kshs.3,721 being balance of the price of shoes
- 5.No orders in respect of general damages for breach of contract
- 6.Judgment entered for the Claimant against the Respondent in the sum of Kshs.57,204 with costs and interest from date of Judgment
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sensations Limited v Carlene Kalunde Lombo [2013] KEELRC 833 (KLR)", Case Analysis (2013). Statement of Claim dated 23rd September 2011 (filed 5th September 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/833/eng@2013-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.