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ELRCPartially AllowedStatement of Claim dated 23rd September 2011 (filed 5th September 2011)· [2013] KEELRC 833 (KLR)

Sensations Limited v Carlene Kalunde Lombo [2013] KEELRC 833 (KLR)

Industrial Court (Employment and Labour Relations Court)
25 September 2013
2,405 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Claimant, Sensations Limited, sued its former employee, Carlene Kalunde Lombo, an Assistant Brand Manager who resigned on 1st September 2011 without notice, claiming one month's salary in lieu of notice (Kshs.32,000), refund of Kshs.152,724 incurred in sponsoring her training trip to Greece under a training bond clause, Kshs.21,483 in overstated commission, Kshs.3,721 for shoes bought on credit, general damages, costs and interest. The Respondent admitted resigning, citing illegal salary deductions and family circumstances, denied the training clause bound her (having signed it after the trip, and unsigned by the Claimant), disputed the commission computation, and admitted the shoes debt. The case proceeded ex-parte on 26th June 2013 after proper substituted service and the Respondent's non-attendance; the Claimant called one witness, its Human Resources Assistant. The court held that although the appointment letter only provided for termination by the employer, the Employment Act's statutory minimum terms (sections 3(1), 3(6), 35(1)(c) and 36) required notice, and awarded Kshs.32,000. The Greece refund claim failed because the additional clause, signed on 24th June 2011 after the trip, could not apply retrospectively and awareness before travel was not proved. The commission and shoes sums were awarded as un-denied and admitted respectively. No orders were made on general damages as the Claimant did not address the court on it. Judgment was entered for the Claimant for Kshs.57,204 with costs and interest from the date of judgment.

Key legal issues

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01

Liability for one month's salary in lieu of notice

Holding

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

Reasoning

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.

p. 3
02

Retrospective application of the training bond clause

Holding

The additional clause was valid but did not apply to the Greece trip as it was signed after the trip

Reasoning

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.

p. 4
03

Overstated commission and shoes balance

Holding

Refund of Kshs.21,483 commission awarded as un-denied; Kshs.3,721 shoes balance awarded on admission

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Award of Kshs.32,000 being one month's salary in lieu of notice
  2. 2.Dismissal of the claim for refund of the cost of the trip to Greece
  3. 3.Award of Kshs.21,483 as refund of overstated commission
  4. 4.Award of Kshs.3,721 being balance of the price of shoes
  5. 5.No orders in respect of general damages for breach of contract
  6. 6.Judgment entered for the Claimant against the Respondent in the sum of Kshs.57,204 with costs and interest from date of Judgment

Authorities

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Legislation

  • Employment Actsection 3(1)
  • Employment Actsection 3(6)
  • Employment Actsection 35(1)(c)
  • Employment Actsection 36
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.