Januarius Musoki Ndeto v Patmat Bookshop Limited [2013] KEELRC 903 (KLR)
The bottom line
#A Kenyan court ruled that suspending an employee on 'leave pending investigations' instead of giving notice and a hearing made the dismissal unfair, awarding Kshs.170,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unfair for want of notice and hearing
The termination was unfair; the claimant was awarded the equivalent of 12 months' gross salary (Kshs.120,000.00) under section 49(1)(c) of the Employment Act
Section 41 of the Employment Act required the respondent to give the claimant notice and a hearing before termination. The respondent instead sent the claimant on leave pending investigations, a process never agreed between the parties, and the intended hearing was never held because the claimant reported the dispute to the labour officer. The court found non-compliance with section 41 and awarded 12 months' gross salary at Kshs.10,000.00 per month as compensation under section 49(1)(c).
Whether the claimant was entitled to underpayment, overtime, rest days and public holiday pay
These claims failed
The court found on the evidence that the claimant performed the duties of a driver and messenger, not a driver and salesman, so the underpayment claim failed. On overtime, rest days and public holidays, there had been no dispute or grievance about the substance of the claim during the employment, leading the court to find the claim was coined as an afterthought after termination.
Whether the claimant was entitled to leave pay for the full period of service
Yes - Kshs.50,000.00 awarded at Kshs.10,000.00 per annum for the 5 years of service (2007-2012)
The court found it undisputed that the respondent took over the Patmat Bookshop enterprise and the claimant continued in employment, making the respondent liable for accrued annual leave over the whole 5-year service period. Considering that the claim for due leave pay was belated, the court awarded a reasonable rounded figure of Kshs.10,000.00 per annum, totalling Kshs.50,000.00.
Notice pay
The Kshs.20,000.00 already paid by the respondent after cessation of employment was reckoned as reasonable pay in lieu of termination notice
The court noted it was undisputed that the respondent had paid the claimant Kshs.20,000.00 after the employment ceased. It treated this payment as reasonable pay in lieu of notice, so no further award was made on that head.
Legal principles established
#- An employer must accord an employee notice and a hearing before termination under section 41 of the Employment Act; an unilaterally invented process such as 'leave pending investigations' does not satisfy this requirement
- Where a business is taken over and the employee continues in employment, the new employer assumes liability for accrued employment benefits such as unpaid annual leave
Court orders
#- 1.a declaration that the termination of the employment was unfair in the circumstances of this case
- 2.the respondent to pay the claimant Kshs.170,000.00 by 15.12.2013, failing interest at court rates to be payable from the date of the suit, 23.04.2013
- 3.the respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (industrial dispute over unfair termination and employment benefits)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Januarius Musoki Ndeto v Patmat Bookshop Limited [2013] KEELRC 903 (KLR)", Case Analysis (2013). Cause (Nakuru), memorandum of claim filed 23.04.2013 (exact cause number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/903/eng@2013-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.