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ELRCPartially AllowedMemorandum of Claim dated 3rd February 2012, filed 15th February 2012· [2015] KEELRC 1532 (KLR)

Mercy Mwende Kivundu v S. N. Anjichi - as the Secretary & Executive Director of Kenya Institute of Bankers [2015] KEELRC 1532 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
26 January 2015
2,190 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that firing an employee by phone call without notice or a hearing was unfair, awarding her KShs 292,000 plus costs.

What this practically means

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Executive summary

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The claimant, Mercy Mwende Kivundu, sued S. N. Anjichi as Secretary and Executive Director of the Kenya Institute of Bankers, alleging she was employed from January 2006 as an administrative secretary and terminated by a telephone call from one Simon K. Guchu on 14th May 2011 while on, or about to commence, maternity leave. She sought notice pay, three months' maternity leave pay, unpaid leave, severance and 12 months' salary as compensation, totalling Kshs 783,000, plus interest, a certificate of service and costs. The respondent denied the claim and contended it was fatally defective as the named respondent was not a registered official of the Institute. The court found, on the strength of the respondent's own staff pictorial and the failure to produce employment records, that the claimant was a continuous employee from January 2006 to May 2011. It held the respondent was properly sued given the Employment Act's definition of 'employer' and the constitutional imperative against procedural technicalities. It found the termination unfair for non-compliance with Sections 41 and 43 of the Employment Act. However, the maternity leave claim was dismissed as unproved and inconsistent with the pleaded termination date, and severance was refused absent redundancy. The court awarded notice (Kshs 30,000), leave pay for 112 days (Kshs 112,000) and 5 months' compensation (Kshs 150,000), totalling Kshs 292,000, with a certificate of service, costs and interest from judgment.

Key legal issues

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01

Existence of a continuous employment relationship

Holding

The claimant was a continuous employee from January 2006 to May 2011, not a part-time worker

Reasoning

The claimant appeared in the respondent's staff pictorial alongside other staff, and RW1 confirmed the staff family numbered seven including the claimant. The respondent produced no records tying payments to specific trainings or specifying periods of engagement. Section 10(7) placed the burden of disproving the employment terms on the employer, who failed to produce records.

p. 2
02

Capacity in which the respondent was sued

Holding

The respondent, sued as Secretary and Executive Director, was properly sued as the representative of an unincorporated body under the Employment Act definition of 'employer'

Reasoning

The Employment Act's definition of employer covers corporate and unincorporated bodies. Guided by Article 22(3)(d), Article 159(2)(d) and Section 20(1) of the Industrial Court Act, the court declined to be bound by technicalities, finding no ambiguity or prejudice since the respondent was sued in his office capacity as Chief Executive, not personally.

p. 3
03

Unfair termination

Holding

The termination was unfair for non-compliance with Sections 41 and 43 of the Employment Act

Reasoning

The termination was effected by telephone call without notice, hearing or valid reasons. The respondent did not deny the allegation, and the person who allegedly terminated (Mr Guchu) was not called to testify. Non-compliance with both procedural and substantive requirements rendered the termination unfair under Section 45.

p. 3
04

Maternity leave claim

Holding

Dismissed; the claimant was bound by her pleadings of termination on 14th May 2011 and did not prove maternity leave

Reasoning

The Memorandum of Claim pleaded termination on 14th May 2011, which bound the claimant. She did not state the date she commenced maternity leave in May nor explain why she began leave in May when delivery was on 19th June 2011. Any maternity leave would have occurred after termination, so the claim failed.

p. 4

Legal principles established

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  • Where the employer fails to produce prescribed employment records, the burden falls on the employer to disprove the employee's allegations on the terms of employment
  • The definition of 'employer' in the Employment Act includes both corporate and unincorporated bodies, allowing suit against an office-holder representing the entity
  • Valid termination requires compliance with the procedure in Section 41 and proof of valid reasons under Section 43; failure renders termination unfair under Section 45

Court orders

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  1. 1.Payment in lieu of notice of Kshs 30,000/=
  2. 2.Annual leave pay for 5 years 4 months (112 days) of Kshs 112,000/=
  3. 3.Compensation of 5 months' salary of Kshs 150,000/=
  4. 4.Total award of Kshs 292,000/=
  5. 5.Certificate of service to be issued to the claimant
  6. 6.Costs of the claim to the claimant
  7. 7.Interest on the decretal sum from the date of judgment

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 10(7)
  • Employment ActSection 41
  • Employment ActSection 43
  • Societies ActSection 41
  • Constitution of KenyaArticle 22(3)(d)
  • Constitution of KenyaArticle 159(2)(d)
  • Industrial Court ActSection 20(1)
  • Civil Procedure RulesOrder 1 Rule 8

Cases cited (3)

  • Abdinoor Dima Jillo (suing as Secretary for and on behalf of Damesa Association) v County Council of Isiolo & 4 Others
    [2008] eKLR
  • Simu Vendors Association v Town Clerk, City Council of Nairobi & Another
    [2005] eKLR
  • Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank
    HCCC No. 5116 of 1992 (O.S)
Jurisdiction invoked
Employment Act and Industrial Court Act (employment dispute before the Industrial Court)

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, "Mercy Mwende Kivundu v S. N. Anjichi - as the Secretary & Executive Director of Kenya Institute of Bankers [2015] KEELRC 1532 (KLR)", Case Analysis (2015). Memorandum of Claim dated 3rd February 2012, filed 15th February 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1532/eng@2015-01-26

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