Janet Kyayumbi Mwanza v Pammi Thatti [2014] KEELRC 1032 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was dismissed or absconded duty
The Claimant failed to prove dismissal; her testimony that she was dismissed on 24th June 2010 was contradicted by her confirmation she was at work on 30th June 2010 collecting salary.
The court weighed the Claimant's account of verbal termination over lost property against the Respondent's evidence of abscondment, evidenced by unanswered calls and a letter to the Ministry of Labour dated 19th July 2010. The contradiction in the Claimant's own testimony on dates was fatal to her claim of dismissal.
Entitlement to leave for untaken days
The Claimant took 14 days leave in May 2010 but was entitled to 24.5 days for 14 completed months, so she was awarded payment for the balance of 10.5 days.
The court accepted RW1's evidence supported by two payment vouchers signed on 30th April 2010 covering April and May salaries, confirming leave was taken with full salary. Applying the statutory accrual of 1.75 days per completed month, the balance of 10.5 days was monetised at Shs. 350 per day.
Service pay
The Claimant is entitled to service pay for one year at 15 days salary per year worked, awarded at Shs. 5,250/-.
Section 35(5) of the Employment Act provides for service pay on termination unless the Section 35(6) exceptions apply. The court found none of the exceptions applicable and awarded 15 days' salary for the year worked.
Certificate of service
The Claimant is entitled to a certificate of service under Section 51 of the Employment Act, to be issued within 30 days.
The Respondent admitted holding the certificate of service but claimed not to know the Claimant's whereabouts. The court directed its issuance within 30 days, relying on Section 51 of the Employment Act.
Legal principles established
#- An employee alleging unfair termination bears the burden of proving the dismissal, and contradictory testimony defeats that proof.
- An employee who has worked a complete period is entitled to 1.75 days leave for each completed month of service, and payment for untaken leave.
- Service pay is payable to a terminated employee under Section 35(5) of the Employment Act unless the exceptions in Section 35(6) apply.
Court orders
#- 1.The Claimant is awarded Shs. 3,675/- being payment for 10.5 days leave at the rate of Shs. 350 per day.
- 2.The Claimant is awarded service pay of Shs. 5,250/-.
- 3.The Respondent is directed to issue the Claimant with a certificate of service in terms of Section 51 of the Employment Act within 30 days.
- 4.Each party shall bear its own costs.
- Jurisdiction invoked
- Industrial Court of Kenya established under the Labour Relations Act (first-instance employment and labour relations jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Janet Kyayumbi Mwanza v Pammi Thatti [2014] KEELRC 1032 (KLR)", Case Analysis (2014). Cause No. 1497 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1032/eng@2014-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.