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ELRCPartially AllowedCause Number 2002 of 2011· [2014] KEELRC 684 (KLR)

Sairabanu Akbarkhan v Kahawa The Coffee House Limited [2014] KEELRC 684 (KLR)

Industrial Court at Nairobi
7 February 2014
2,707 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 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

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Executive summary

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The Claimant, employed by the Respondent restaurant from around January 2006 on an oral contract at Kshs. 18,000 per month, claimed she was unfairly and unlawfully terminated on 19th February 2011 contrary to Sections 41 and 45 of the Employment Act 2007, and sought eight heads of relief totalling Kshs. 2,153,469, including notice pay, leave, underpayment, service pay, overtime and 12 months' compensation. The Respondent denied termination, asserting she deserted employment on 21st February 2011 after remarrying, opening her own Mobile Phone Shop and converting from the Ismailia to the Islamic faith. The Court credited the Respondent's evidence, including testimony of the Director Zulfiqarali and Accountant Mwangi that they traced the Claimant to her shop and were told she would not return. The Court held the Claimant left employment of her own volition, so there was no termination by the Respondent, fair or unfair, and notice pay and compensation were not merited. Underpayment failed because employees cannot fix their own wages, and overtime failed because her 52-hour week was within lawful normal hours. However, the Respondent conceded accrued entitlements: the Court awarded annual leave pay of Kshs. 27,000, leave traveling allowance of Kshs. 18,000, February 2011 salary of Kshs. 13,153, and service pay of Kshs. 41,538 for the four years before N.S.S.F coverage - totalling Kshs. 99,691, payable within 30 days. No order was made on costs. The claim therefore partially succeeded.

Key legal issues

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01

Whether the Claimant was unfairly and unlawfully terminated or deserted employment

Holding

The Claimant left employment of her own volition; the Respondent did not terminate her contract and bears no liability for unfair termination.

Reasoning

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.

p. 3
02

Entitlement to accrued monetary benefits

Holding

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.

Reasoning

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.

p. 4
03

Underpayment of salary

Holding

The claim failed; the agreed salary was Kshs. 18,000 and no contractual or statutory provision required more.

Reasoning

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.

p. 4
04

Overtime

Holding

Disallowed; the Court found she worked 52 hours a week, within lawful normal hours.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Annual leave pay of Kshs. 27,000 granted for 39 days
  2. 2.Leave traveling allowance of Kshs. 18,000 granted (Kshs. 3,000 for 6 years)
  3. 3.Salary for 19 days worked in February 2011 of Kshs. 13,153 granted
  4. 4.Service pay of Kshs. 41,538 granted (15 days' salary for 4 years)
  5. 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. 6.No order on the costs

Authorities

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Legislation

  • Employment ActSections 41 and 45
  • Regulation of Wages [General] Order52-hour working week
  • Regulation of Wages [Hotels and Catering Trades] Order52-hour working week
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

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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, "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.