Harrison Ephantus Mucoya v Beveva Parts & Accessories Limited [2015] KEELRC 1425 (KLR)
The bottom line
#A Kenyan employer who fired a worker over a theft without investigating or tracing him was ordered to pay over Kshs. 444,000 in compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was terminated or deserted duty
The Court preferred the Claimant's version that he was verbally terminated after the alleged loss of money, amounting to unfair termination under Section 45 of the Employment Act
The Respondent's witness claimed the Claimant deserted duty after the theft of Kshs. 200,000. The Court found it implausible that an employer would let suspects in a theft simply walk away. Absent further evidence on the circumstances of termination, the Claimant's account was adopted, and the termination was held unfair under Section 45.
Limitation under Section 90 of the Employment Act
Service and leave pay are continuing wrongs; time ran from termination on 16th April 2011, and the conciliation referral further tolled time, so the claim filed on 28th November 2011 was in time
The Respondent argued claims predating 2008 were statute barred. The Court held service and leave pay are continuing wrongs, with time running from termination. Relying on existing jurisprudence, time also did not run while the dispute was at conciliation at the District Labour Office. The claim was therefore filed well within time.
Whether conciliation at the Labour Office barred the claim
Referral to conciliation does not bar the claim; the Court has jurisdiction since the Claimant was dissatisfied with the Labour Office decision
The Respondent submitted the claim was improperly before the Court because it had been dealt with at the Labour Office. Following Leonida Makokha & 3 Others v Munene Estate Limited, the Court held referral to conciliation is no bar, and the Claimant's dissatisfaction with the Labour Office decision preserved his right of access to the Court.
Reliefs and counterclaim
Claimant awarded 8 months' salary compensation, notice pay, service pay for 6 years and leave pay; salary arrears and the Respondent's counterclaim dismissed for want of proof
Compensation was assessed at 8 months' salary considering length of service and the Respondent's conduct, including failure to pay full terminal dues. Service pay was due because NSSF was remitted for only two years. Leave pay was allowed under Section 10(7) as the Respondent kept no leave records. Both salary arrears and the counterclaim failed for lack of proof.
Legal principles established
#- An employer relying on summary dismissal for absence from work must demonstrate efforts made to trace the employee's whereabouts before taking action
- Employers bear the evidential burden of producing leave records; failure permits the court to allow an unproved leave claim under Section 10(7)
- Service and leave pay claims are continuing wrongs, so limitation runs from termination of employment
- Referral of a trade dispute to conciliation does not bar a party from seeking justice before the Court
Court orders
#- 1.Award to the Claimant of 8 months' salary in compensation for unfair termination (Kshs. 200,000)
- 2.1 month's salary in lieu of notice (Kshs. 25,000)
- 3.Service pay for 6 years (Kshs. 75,000)
- 4.Leave pay for 8 years (Kshs. 140,000)
- 5.Prorata leave for 2011 (Kshs. 4,375), total award Kshs. 444,375
- 6.Respondent to meet the costs of the case
- 7.Award to attract interest at court rates from the date of the award until payment in full
- Jurisdiction invoked
- Trade dispute referred to the Employment and Labour Relations Court under the Labour Relations Act jurisdiction of the Court in employment and labour relations matters
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gordon James Oyugi v Gulsan Construction [2019] KEELRC 87 (KLR)[2019] KEELRC 87 (KLR)22 Nov 2019applied
Cite this brief
#Cite this brief
Caselaw, "Harrison Ephantus Mucoya v Beveva Parts & Accessories Limited [2015] KEELRC 1425 (KLR)", Case Analysis (2015). Cause No 2008 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1425/eng@2015-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.