Sairabanu Akbarkhan v Kahawa The Coffee House Limited [2014] KEELRC 684 (KLR)
The bottom line
#A Kenyan court ruled an employee who left her job voluntarily could not claim unfair termination, but her employer still owed her accrued leave pay, salary and service pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was unfairly and unlawfully terminated or deserted employment
The Claimant left employment of her own volition; the Respondent did not terminate her contract and bears no liability for unfair termination.
The Court found overwhelming evidence that the Claimant remarried, opened her own Mobile Phone Shop and converted from the Ismailia Faith, and told the Respondent's Director and Accountant she had reached a point of no return. She was not forthright and crafted a claim for unfair termination. Notice pay and compensation therefore failed.
Entitlement to accrued monetary benefits
The Claimant was granted annual leave pay of Kshs. 27,000, leave traveling allowance of Kshs. 18,000, salary for 19 days worked in February 2011 of Kshs. 13,153, and service pay of Kshs. 41,538.
The Respondent conceded 39 days of leave and unpaid February salary. No explanation was given for non-payment of leave traveling allowance. The Respondent conceded non-remittance of N.S.S.F contributions prior to 2009, entitling the Claimant to service pay for 4 uncovered years.
Underpayment of salary
The claim failed; the agreed salary was Kshs. 18,000 and no contractual or statutory provision required more.
The Claimant simply demanded Kshs. 30,000 and, when refused, assumed underpayment was due. Increments must flow from contract, wage order, employer practice or policy, or another employment instrument - not an employee's unilateral demand.
Overtime
Disallowed; the Court found she worked 52 hours a week, within lawful normal hours.
The Parties gave conflicting accounts of working hours. Applying the Regulation of Wages [General] Order and the Regulation of Wages [Hotels and Catering Trades] Order, the Court found 9 hours Monday to Friday and 7 hours on Saturdays, totaling 52 hours - the normal lawful week. No overtime arose.
Legal principles established
#- An employee who voluntarily abandons employment cannot sustain a claim for unfair termination; notice pay and compensation are unavailable where the contract was not terminated by the employer.
- Employees cannot act as their own wage-fixing mechanisms; wage increments must flow from contract, wage order, employer practice or policy or another legal employment instrument.
- A normal working week of 52 hours spread over 6 days is lawful, and work within those hours attracts no overtime.
- Where an employee was not covered under the N.S.S.F for part of her service, she is entitled to service pay for the uncovered period.
Court orders
#- 1.Annual leave pay of Kshs. 27,000 granted for 39 days
- 2.Leave traveling allowance of Kshs. 18,000 granted (Kshs. 3,000 for 6 years)
- 3.Salary for 19 days worked in February 2011 of Kshs. 13,153 granted
- 4.Service pay of Kshs. 41,538 granted (15 days' salary for 4 years)
- 5.Total award of Kshs. 99,691 to be paid by the Respondent to the Claimant in full and final settlement within 30 days of delivery of the Award
- 6.No order on the costs
- Jurisdiction invoked
- Industrial Court jurisdiction over disputes between employers and employees (Labour Institutions Act/Constitution Article 162(2) - not expressly cited in the Award)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sairabanu Akbarkhan v Kahawa The Coffee House Limited [2014] KEELRC 684 (KLR)", Case Analysis (2014). Cause Number 2002 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/684/eng@2014-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.