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ELRCPartially AllowedCause (Memorandum of Claim filed 28 October 2013) - number not stated in judgment· [2015] KEELRC 1478 (KLR)

Josphat Munke Ole Mpoe v David Waiganjo Koinange [2015] KEELRC 1478 (KLR)

Employment and Labour Relations Court
6 February 2015
1,830 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed as farm manager/security head of Muthera Farm (estate of Mbiyu Koinange) by the estate's administrators from 1 January 2011, was suspended by the Respondent, one of the administrators, by letter dated 25 September 2013 accusing him of embezzlement and tribalism. He sued claiming declarations that the suspension was unlawful, a perpetual injunction against interference or eviction, unpaid salary of Kshs 3.4 million at Kshs 100,000/- per month, and leave allowance of Kshs 200,000/-. Interim orders were issued by Ongaya J on 28 October 2013 and a contempt application was later lodged. The Respondent never filed a Response, so the Cause proceeded as an undefended cause and the Claimant's facts were taken as uncontroverted. The court held that suspension, especially without pay, must have a contractual or statutory basis; the suspension had none, was imposed unilaterally without consultation with the other administrators (who opposed it through their advocate), and was indefinite, and was therefore unlawful and unfair. The appointment letter omitted remuneration, but the court accepted the Claimant's unchallenged evidence of an agreed salary of Kshs 100,000/- per month, awarding Kshs 5,000,000/- for 50 months up to February 2015. Under section 28 of the Employment Act, 2007 he was awarded Kshs 400,000/- being four months' pay in lieu of untaken leave. However, the declarations and perpetual injunction sought were refused as inappropriate remedies where fundamental rights were not directly implicated and because an employment relationship must end at some point. Kshs 800,000/- which the Claimant admitted owing in a letter dated 20 January 2014 was to be deducted from the award, and the Claimant was denied costs for late filing of submissions. Judgment delivered in Nakuru on 6 February 2015.

Key legal issues

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01

Lawfulness of the suspension of the Claimant

Holding

The suspension was unlawful and unfair because it had no contractual or statutory basis, was imposed by one administrator without consultation with the others, and was indefinite

Reasoning

The court held that suspension, especially without pay, requires a contractual or statutory foundation; none existed here. The Respondent acted unilaterally as one of several administrators, contrary to the stance of the other administrators whose advocate opposed the suspension by letter dated 11 October 2013. The suspension was also indefinite. The court endorsed McClory v Post Office and McKenzie v Smith as stating correct principles applicable in this jurisdiction.

p. 4
02

Entitlement to unpaid salary

Holding

The Claimant was entitled to wages of Kshs 5,000,000/- for 50 months up to February 2015 at the agreed Kshs 100,000/- per month

Reasoning

Although the appointment letter omitted remuneration, the Claimant's unchallenged evidence that remuneration was agreed at Kshs 100,000/- per month was accepted. He testified he had never been paid and survived by farming 10 acres of the farm. In the undefended cause these facts were uncontroverted, so wages accrued to the time of judgment.

p. 4
03

Entitlement to leave

Holding

The Claimant was entitled to the equivalent of 4 months' pay, Kshs 400,000/-, in lieu of untaken annual leave under section 28 of the Employment Act

Reasoning

Under section 28 of the Employment Act, 2007 an employee is entitled to at least 21 days annual leave with full pay. The Claimant testified he never went on leave during the approximately 2 years 10 months of employment up to suspension. The court computed the entitlement as the equivalent of 4 months' pay in lieu of leave.

p. 4
04

Appropriateness of declarations and permanent injunction

Holding

Declarations and a perpetual injunction were refused as inappropriate remedies in the circumstances

Reasoning

The court distinguished this Cause from unfair termination or wrongful dismissal: it concerned the fairness of a suspension and non-fulfilment of contractual terms. Because fundamental rights and freedoms were not directly implicated, declarations were ineffective, and a perpetual injunction was unsuited since an employment relationship must end at some point.

p. 4

Legal principles established

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  • Suspension from employment, especially without pay, must have a contractual or statutory basis, failing which it is a breach of contract
  • In an undefended cause, the facts presented by the claimant are taken as uncontroverted

Court orders

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  1. 1.The Respondent to pay the Claimant salaries up to February 2015 of Kshs 5,000,000/-
  2. 2.The Respondent to pay accrued pay in lieu of leave of Kshs 400,000/-, total award Kshs 5,400,000/-
  3. 3.Deduction of Kshs 800,000/- admitted as owed by the Claimant in his advocate's letter dated 20 January 2014 from the awarded sum
  4. 4.Costs denied to the Claimant for late filing of submissions

Authorities

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Legislation

  • Employment ActNo. 11 of 2007, section 41
  • Employment ActNo. 11 of 2007, section 28
  • Constitution of Kenya, 2010Article 47

Cases cited (2)

  • McClory v Post Office
    (1993) IRLR 159
  • McKenzie v Smith
    (1976) IRLR 345
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations (Employment Act No. 11 of 2007 invoked)

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, "Josphat Munke Ole Mpoe v David Waiganjo Koinange [2015] KEELRC 1478 (KLR)", Case Analysis (2015). Cause (Memorandum of Claim filed 28 October 2013) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1478/eng@2015-02-06

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