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ELRCPartially AllowedNot stated in judgment· [2016] KEELRC 1213 (KLR)

Charles Mathenge v Nyena Sacco [2016] KEELRC 1213 (KLR)

Employment and Labour Relations Court
13 May 2016
BOByram Ongaya
706 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 a driver's verbal dismissal without notice or hearing was unfair, awarding modest leave and holiday pay.

What this practically means

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Executive summary

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The claimant, employed as a driver at Kshs. 16,000.00 per month from 06.10.2011 on a six-month probationary term, sued for salary arrears, unpaid leave days and unpaid overtime, alleging he was verbally dismissed by the respondent's chairman after the vehicle he was driving developed a mechanical problem en route from Mombasa to Nairobi. The respondent's chairman testified that the claimant was involved in an accident at Makindu, abandoned the vehicle and never reported back to duty, and cited further misconduct including drinking on duty and speeding, relying on a letter from the Transport Licensing Board. The court framed two issues: whether the termination was unfair, and whether the claimant was entitled to the remedies prayed for. On the first, the court found the respondent's account wanting because no disciplinary proceedings were ever initiated for the alleged absence without leave, and held the claimant's account credible, finding that the dismissal was verbal, without notice and without a hearing, contrary to section 41 of the Employment Act, 2007. On remedies, the claim for salary arrears of Kshs. 80,000.00 and accruing amounts failed, as the termination was oral and no reinstatement was sought. Leave was awarded at Kshs. 10,666.70 (statutory 21 days exceeding the 14 days agreed at the labour office) and holiday pay at Kshs. 4,266.00 for 8 agreed public holiday days, totalling Kshs. 14,932.70. Considering the unfair termination and the respondent's willingness to pay, each party was ordered to bear its own costs. Judgment was entered accordingly on 13 May 2016 at Nyeri.

Key legal issues

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01

Whether the claimant was unfairly terminated

Holding

Yes - the claimant was verbally dismissed without notice or hearing

Reasoning

The respondent alleged the claimant abandoned the vehicle after an accident at Makindu and absented himself from duty. The court found it inexplicable that the respondent never initiated disciplinary proceedings for the alleged absence without leave, and preferred the claimant's account that he was verbally dismissed by the chairman after the accident. Such dismissal contravened section 41 of the Employment Act, 2007.

p. 2
02

Whether the claimant is entitled to the remedies prayed for

Holding

Partially - leave pay of Kshs. 10,666.70 and holiday pay of Kshs. 4,266.00 awarded; salary arrears and full overtime claim failed

Reasoning

The claim for salary arrears failed because termination was oral and no reinstatement was sought. Leave was agreed at the labour office at 14 days prorate but the statutory entitlement is 21 days, so Kshs. 10,666.70 was awarded. Overtime was not established; only 8 days worked on public holidays were agreed, valued at Kshs. 4,266.00.

p. 2

Legal principles established

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  • Termination of employment requires notice and a hearing as provided for in section 41 of the Employment Act, 2007

Court orders

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  1. 1.The respondent to pay the claimant a sum of Kshs. 14,932.70 by 01.06.2016 failing interest at court rates to be payable thereon from the date of the judgment till full payment
  2. 2.Each party to bear own costs of the suit

Authorities

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Legislation

  • Employment Act, 2007Section 41
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)

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, "Charles Mathenge v Nyena Sacco [2016] KEELRC 1213 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1213/eng@2016-05-13

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