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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 455 (KLR)

Ismail Ramadhan Juma v Maz Distributors Limited [2016] KEELRC 455 (KLR)

Employment and Labour Relations Court
7 October 2016
1,771 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a driver who walked off his job deserted his employment, winning only unpaid leave and salary shortfalls, not unfair termination compensation.

What this practically means

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Executive summary

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The claimant sued for terminal dues and compensation for unfair termination of his employment as a Canter driver by the respondent on 25 July 2015, seeking salary underpayment of Kshs. 424,545, house allowance of Kshs. 365,585, annual leave of Kshs. 123,595, compensation for unfair termination of Kshs. 296,628 and one month's salary in lieu of notice. The respondent denied terminating the claimant, asserting he deserted work after refusing assigned duties, and counter-claimed for loss of business and an unpaid loan of Kshs. 20,000. The suit was disposed of by written submissions on the pleadings, witness statements and documentary evidence. The court found no dispute that the claimant was employed from January 2011 to July 2015, and framed two issues: whether the claimant was unfairly dismissed or deserted work, and whether the reliefs and counter-claim should be granted. On the evidence of the three defence witnesses, the court found on a balance of probability that the claimant terminated the contract through desertion and that he failed to discharge the burden of proving unfair termination under section 47(5) of the Employment Act; the claims for compensation and salary in lieu of notice were dismissed. The underpayment claim succeeded only partially: computing statutory minimum wages plus a 15% house allowance, the court found no underpayment from 2011 to April 2013 but awarded Kshs. 12,335.10 for the periods May 2013-April 2015 and May-July 2015. Annual leave of Kshs. 58,967.95 was awarded since the respondent produced no leave records. The Kshs. 20,000 loan counter-claim was allowed but the loss-of-business claim was dismissed as unpleaded and unproved. Final judgment was entered for the claimant for Kshs. 71,303.05, less the Kshs. 20,000 counter-claim, leaving a net of Kshs. 51,303.05, with half costs and interest.

Key legal issues

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01

Whether the claimant was unfairly dismissed or deserted work

Holding

On a balance of probability the contract was terminated by the claimant through desertion, so reliefs under section 49 of the Employment Act are unavailable

Reasoning

The defence witnesses' statements were consistent that the claimant reported to work on 25 July 2015, refused to drive motor vehicle KBS 768D which had been loaded with goods, disappeared, and repeated the pattern on 27 and 30 July 2015. The claimant's brief statement failed to discharge the burden under section 47(5) of the Employment Act of proving that an unfair termination occurred.

p. 2
02

Whether the claimant's salary was underpaid

Holding

No underpayment from 2011 to April 2013; underpayments of Kshs. 4,854.65 for May 2013-April 2015 and Kshs. 7,480.50 for May-July 2015, totaling Kshs. 12,335.10

Reasoning

The court computed the statutory minimum gross pay (basic pay plus 15% house allowance) under the General Wage Orders published under section 46 of the Labour Institutions Act for each period and compared it with the undisputed gross pay of Kshs. 18,891. The gross pay fell below the minimum only after the gazetted increases effective May 2013 and May 2015.

p. 3
03

Whether the claimant was entitled to annual leave pay for five years

Holding

Awarded Kshs. 58,967.95 for untaken leave over the employment period

Reasoning

The respondent produced no leave records to disprove the claim, the suit was filed within 12 months of the cessation of the continuous breach, and although Mr. Athman alluded to a loan advanced before leave, no evidence proved the claimant actually took or utilised his leave. Leave was therefore awarded at basic pay under the Government Wage Order for 21 days per year.

p. 3
04

The respondent's counter-claim

Holding

The Kshs. 20,000 loan allowed; loss of business claim dismissed

Reasoning

The loan of Kshs. 20,000 was not contested by the claimant and was therefore allowed as prayed. The claim for loss of business allegedly suffered on 25 July 2015 was neither properly pleaded nor proved in evidence and was dismissed.

p. 4

Legal principles established

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  • The burden of proving unfair termination or wrongful dismissal rests on the employee
  • An employer who provides no housing must pay salary inclusive of a house allowance component (15% used) which, combined with basic pay, must meet the statutory minimum gross wage
  • Where an employer produces no leave records to disprove a leave claim, the court will award leave at the rate of basic pay under the Government Wage Order for 21 days per year

Court orders

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  1. 1.Judgment entered for the claimant for Kshs. 71,303.05
  2. 2.Set-off of Kshs. 20,000 counter-claim, leaving a net of Kshs. 51,303.05
  3. 3.Claimant awarded half costs
  4. 4.Interest awarded on the judgment sum
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act; Labour Institutions Act)

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, "Ismail Ramadhan Juma v Maz Distributors Limited [2016] KEELRC 455 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/455/eng@2016-10-07

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