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ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 384 (KLR)

Claver Alex Mkosi v Corner Garage Tr Limited [2015] KEELRC 384 (KLR)

Employment and Labour Relations Court
23 October 2015
OMOnesmus Makau
1,541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled an employee who insisted on a written transfer letter was unfairly dismissed, awarding him Ksh 171,500.

What this practically means

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Executive summary

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The claimant, employed by the respondent as an accountant/accounts assistant from 28.3.1998 at a salary of Ksh 25,000 per month, sued for terminal dues arising from the alleged unlawful termination of his employment on 29.2.2012. The respondent denied dismissal, asserting the claimant deserted work after defying a Director's instruction to assist a sister company, Synergy Gases (K) Ltd, and counterclaimed Ksh 128,157 as outstanding loans and advances. The issues framed were whether the claimant deserted or was unlawfully dismissed, whether reliefs should be granted, and whether the counterclaim should be allowed. On the evidence, the court found on a balance of probability that the claimant never deserted work but was dismissed by the Director, Mr Latif Pandya, after he insisted on a written transfer letter; his immediate report to the labour office was inconsistent with desertion. No written contract provided for transfer to an associated entity, so the unilateral transfer amounted to breach of contract and unfair termination without consent or lawful cause. The court awarded one month's salary in lieu of notice, February 2012 salary and six months' gross salary as compensation, totalling Ksh 200,000, plus a certificate of service. Service pay was refused because the claimant was an NSSF member under section 35(6) of the Employment Act. On the counterclaim, the court found advances were made in 2002, 2004 and 2008 but the earlier debts were time barred; only the admitted Ksh 28,500 (2008) was recoverable and was set off against the award, leaving judgment for the claimant of Ksh 171,500 plus costs and interest, delivered at Mombasa on 23 October 2015.

Key legal issues

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01

Whether the claimant deserted work or was unlawfully dismissed

Holding

The claimant did not desert; he was dismissed after refusing a unilateral verbal transfer without written terms

Reasoning

The court found on a balance of probability that the claimant was dismissed by the Director after requesting a transfer letter. His immediate report to the labour office was inconsistent with desertion. Having served 13 years without any appointment letter, it was reasonable for him to insist on written transfer terms before joining the sister company.

p. 2
02

Whether the dismissal was unfair and unlawful

Holding

Yes - the transfer without written consent constituted breach of contract and unfair termination

Reasoning

No written contract provided for transfer to an associated entity. The termination was without the claimant's consent and without lawful cause, breaching section 45's requirements of valid reason and fair procedure.

p. 2
03

Whether the counter claim for loans should be allowed

Holding

Allowed only for Ksh 28,500 (2008 advance); earlier debts were time barred

Reasoning

The claimant admitted advances of Ksh 9,000 and Ksh 28,500 recovered via payslip deductions. Recovery documents showed deductions only up to March 2009, and the 2002 and 2004 debts fell outside the six-year limitation period, while the 2008 debt was recoverable, the claim being filed in 2012.

p. 3

Legal principles established

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  • Termination of employment is unfair if done without a valid and fair reason and without following a fair procedure (section 45 Employment Act)
  • A unilateral transfer of an employee to another entity without written consent or clear terms amounts to breach of contract and unfair termination
  • An employee covered by NSSF is disqualified from claiming service pay under section 35(6) of the Employment Act

Court orders

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  1. 1.Declared that termination of the claimant's employment was unlawful and unfair
  2. 2.Awarded the claimant one month salary in lieu of notice, salary for February 2012 and six months gross salary as compensation, totalling Ksh 200,000
  3. 3.Allowed the counter claim to the extent of Ksh 28,500, set off against the award
  4. 4.Judgment entered for the claimant for Ksh 171,500 plus costs and interest
  5. 5.Ordered issuance of a certificate of service under section 51 of the Employment Act
  6. 6.Dismissed the claimant's prayer for service pay

Authorities

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Legislation

  • Employment Actsection 45
  • Employment Actsection 49(1) and 49(3)
  • Employment Actsection 51
  • Employment Actsection 35(6)
  • NSSF Actsocial security coverage
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act applied: ss 35, 45, 49, 51)

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, "Claver Alex Mkosi v Corner Garage Tr Limited [2015] KEELRC 384 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/384/eng@2015-10-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.