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ELRCPartially AllowedCause Number 204 of 2013· [2016] KEELRC 503 (KLR)

Edward Nyange Nyambu v Kassam Hauliers Limited [2016] KEELRC 503 (KLR)

Industrial Court of Kenya at Mombasa
23 September 2016
387 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's employment court awarded a mechanic 12 months' salary because his employer skipped the hearing and offered no real defence to the sacking.

What this practically means

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Executive summary

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The Industrial Court at Mombasa, presided over by Rika J, delivered an Award in this claim by Edward Nyange Nyambu, a Mechanic employed by Kassam Hauliers Limited in April 2010 at a monthly salary of Kshs. 15,000, whose contract was terminated on 20th February 2013 without cause or notice. The claimant sought a declaration that termination was unfair, terminal dues of Kshs. 21,350, one month's salary in lieu of notice (Kshs. 15,000), 12 months' salary as compensation for unfair termination (Kshs. 180,000), a Certificate of Service, and costs with interest. The Court noted the matter shared a similar history with Cause Number 205 of 2016 (Thomas Mghanga Wandoe v. Kassam Hauliers Limited) and adopted the findings in that cause insofar as relevant. The Respondent did not attend court for the hearing of its case, and its Statement of Response was a general denial; the Court held it had not discharged its obligations under Sections 41, 43 and 45 of the Employment Act 2007. The Court declared the termination unfair and ordered the Respondent to pay compensation equivalent to 12 months' salary (Kshs. 180,000) plus one month's salary in lieu of notice (Kshs. 15,000), totalling Kshs. 195,000, and to issue a Certificate of Service. The prayer for terminal dues was declined on the grounds stated in the Wandoe Case. Costs were awarded to the Claimant, with interest at 14% from the date of delivery of the Award.

Key legal issues

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01

Whether termination was unfair and unlawful

Holding

Termination was unfair; the Respondent, having not attended court and having filed only a general denial, failed to discharge its obligations under Sections 41, 43 and 45 of the Employment Act 2007

Reasoning

The Claimant was employed as a Mechanic in April 2010 on a monthly salary of Kshs. 15,000 and his contract was terminated on 20th February 2013 without cause or notice. The Respondent did not attend court for the hearing of its case, and its Statement of Response was a general denial, similar in tone and tenor to that in the Wandoe Case. It therefore failed to prove valid reason and fair procedure, and the Court adopted the findings in the related Wandoe Cause.

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02

What remedies flow from the unfair termination

Holding

The Claimant was awarded 12 months' salary as compensation for unfair termination (Kshs. 180,000), one month's salary in lieu of notice (Kshs. 15,000), a Certificate of Service, costs and interest at 14%; the prayer for terminal dues was declined on the grounds stated in the Wandoe Case

Reasoning

Having found the termination unfair, the Court granted the maximum 12 months' gross salary as compensation under the Employment Act, notice pay, and a Certificate of Service as of right. However, it expressly declined the prayer for terminal dues, adopting the reasons given in the companion Wandoe Cause. Costs and interest at 14% from the date of the Award were also granted to the Claimant.

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Legal principles established

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  • Where a respondent does not attend court for hearing and its statement of response is a mere general denial, it has not discharged its statutory burden under Sections 41, 43 and 45 of the Employment Act 2007 to justify termination
  • A court may adopt findings in a related cause with a similar history rather than re-hear the issues in dispute

Court orders

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  1. 1.Declaration that termination was unfair
  2. 2.Respondent to pay the Claimant compensation equivalent of 12 months' salary at Kshs. 180,000 and 1 month salary in lieu of notice at Kshs. 15,000, total Kshs. 195,000
  3. 3.Certificate of Service to issue
  4. 4.Costs to the Claimant
  5. 5.Interest to the Claimant at 14% from the date of delivery of the Award

Authorities

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Legislation

  • Employment ActSections 41, 43 and 45

Cases cited (1)

  • Thomas Mghanga Wandoe v. Kassam Hauliers Limited
    Cause Number 205 of 2016
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the dispute in employment (Industrial Court, Cause Number 204 of 2013); Employment Act 2007, Sections 41, 43 and 45

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, "Edward Nyange Nyambu v Kassam Hauliers Limited [2016] KEELRC 503 (KLR)", Case Analysis (2016). Cause Number 204 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/503/eng@2016-09-23

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