Samson Makamu Luvutse v Nakuru Spare House Ltd [2015] KEELRC 1479 (KLR)
The bottom line
#A Kenyan court ruled an employee was unfairly dismissed verbally, not a deserter, and awarded him Kshs 80,665 plus a certificate of service.
What this practically means
#Executive summary
#Key legal issues
#Date of commencement of employment
Claimant was employed on 3 December 2006, though the relationship was only formalized in writing in 2008.
The Respondent denied the pleaded start date but did not plead its own date. The Claimant's job application letter dated 3 December 2006 addressed to the Respondent, together with the Respondent's director's testimony based only on records (he joined operations in 2014), made it more probable than not that employment began in 2006.
Claimant's designation/occupation
Claimant was a general labourer, not a shop assistant or salesman.
The Claimant was inconsistent, pleading shop assistant but telling the Labour office and his advocate he was a salesman, and he disowned the appointment letter. He also failed to disclose his day-to-day duties. Since salesman and shop assistant attract different minimum wages under the Wages Orders, and the claim failed on designation, the Court found him a general labourer for wage purposes.
Unfair termination versus desertion
The Claimant did not desert duty; he was verbally terminated, and the termination was both procedurally and substantively unfair.
The Claimant discharged his burden under section 47(5) with uncontroverted evidence of hospitalisation and of being told to leave and collect his wages. The Respondent failed to prove desertion, gave no hearing under section 41, no notice under section 35, and did not prove valid and fair reason under sections 43 and 45.
Alleged discrimination on health status
No positive finding of discrimination based on medical status despite awareness of the dismissal timing.
The Claimant's testimony was incoherent, shifting between being stopped from drinking tea and being stopped from preparing tea, and he could not recall when this occurred. Although the Respondent may have learned of his status around 8 November 2012, the case as prosecuted did not establish the discrimination claim.
Counterclaim for Kshs 27,260/-
Counterclaim failed in both limbs.
The notice-pay limb failed because there was no desertion. The loan limb failed because the vouchers were unchallenged but the Respondent did not rebut the Claimant's assertion that loans were recoverable from wages and produced no records of recoveries, though it alone controlled deductions at source.
Remedies
Award of one month pay in lieu of notice, underpayments totalling Kshs 9,036/-, and 7 months' wages as compensation for unfair termination, plus certificate of service.
Compensation under section 49 is discretionary, guided by section 49(4) factors including length of service; the Claimant served about 7 years. Pro rata 2012 leave, unspecified, was factored into compensation under section 49(4)(i). The minimum wage for a general labourer was used as the basis.
Legal principles established
#- In complaints of unfair termination, the burden of proving that unfair termination or wrongful dismissal occurred rests on the employee, while the burden of justifying the grounds rests on the employer (section 47(5) Employment Act).
- Summary dismissal on ground of absence without permission is still subject to procedural fairness under section 41, being a species of misconduct.
- An employer contemplating dismissal for desertion of an absent employee who is reachable must inform him and may have to demonstrate reasonable attempts to contact him.
Court orders
#- 1.One month wage in lieu of notice of Kshs 7,915/-
- 2.Underpayments of Kshs 9,036/-
- 3.7 months wages compensation of Kshs 63,714/-
- 4.Total award of Kshs 80,665/- against the Respondent
- 5.Respondent to issue the Claimant a certificate of service forthwith
- 6.Each party to bear own costs
- Jurisdiction invoked
- Industrial Court Act, 2011 (employment and labour relations jurisdiction); Employment Act, 2007
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.
- John Nduba v Africa Medical and Research Foundation (AMREF Health Africa) [2020] KEELRC 1685 (KLR)[2020] KEELRC 1685 (KLR)7 Feb 2020
Cite this brief
#Cite this brief
Caselaw, "Samson Makamu Luvutse v Nakuru Spare House Ltd [2015] KEELRC 1479 (KLR)", Case Analysis (2015). Cause No 396 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1479/eng@2015-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.