Mary Njambi Marira & 5 Others v Kiambu Unity Finance Co-Operative Union Limited [2016] KEELRC 1235 (KLR)
The bottom line
#A Kenyan court awarded two former employees modest leave payments but rejected most claims because their 2006 dismissals fell under older, harsher employment law.
What this practically means
#Executive summary
#Key legal issues
#Res judicata / multiplicity of suits and jurisdiction
The High Court suits (HCCC Nos. 2353 of 2007, 2354 of 2007 and 428 of 2009) related to loan repayment and did not bar these claims; the purported Cause No.402(N) of 2009 was cancelled by the Registrar and never validly existed, so the claim was heard on its merits
The Registrar's letter confirmed Cause No.402(N) of 2009 had been inadvertently stamped and cancelled, with the number reallocated; the Respondent had not entered appearance in that cause. The HCCC suits concerned loan security, not termination dues. With no valid parallel suit, the Court retained jurisdiction and addressed the claim on the merits.
Applicable law and section 90 of the Employment Act, 2007
The repealed Employment Act, Cap 226 governed the terminations of January and May 2006; claims filed on 10 March 2011 were within the 6-year limitation period, and section 90 of the 2007 Act was inapplicable
The cause of action arose before the Employment Act, 2007 came into force. Under the repealed regime, termination claims were regulated by the law of contract and the Limitation of Actions Act, allowing 6 years. Had the 2007 Act applied, the 3-year limitation under section 90 would have defeated the claim. The two statutes rest on different conceptual frameworks - common law versus fair labour relations under Article 41 of the Constitution.
Redundancy and severance pay
No redundancy was declared; the terminations were for negligence or summary dismissal, so severance pay was not payable
Redundancy under section 2 of the repealed Act requires loss of employment through involuntary means where services are superfluous. The termination letters cite negligence for the 1st to 4th Claimants and summary dismissal for the 5th and 6th. No evidence of any redundancy declaration by the Respondent was adduced.
Entitlement to leave pay and leave allowance
The 1st Claimant was awarded 12 days' unpaid leave at Kshs.14,380 and 30% leave allowance at Kshs.10,644; the 2nd Claimant was awarded leave allowance at Kshs.10,644
Leave records are kept by the employer; the Respondent paid for 36 days but produced no schedule of leave taken to justify the balance, so 12 days remained unpaid. The policy manual allowed 30% leave allowance on accumulated leave exceeding 7 days, not the 40% claimed.
Summary dismissal of the 5th and 6th Claimants
Under the then-applicable law and policy manual, summary dismissal carried no entitlement to notice pay or allowances; the remedy of damages for wrongful dismissal was not pleaded
The provisions of the repealed Act on summary dismissal were harsh, and the policy manual provided no notice or accrued benefits on summary dismissal. Although the elements of fraud were not proved by the Respondent, the Claimants pleaded no claim for wrongful termination damages, which must be specifically pleaded and proved under the common law framework.
Legal principles established
#- Where a cause of action arose before the Employment Act, 2007 came into force, the repealed Employment Act, Cap 226 applies and claims were to be filed within 6 years under the law of contract and the Limitation of Actions Act
- Under the repealed Employment Act, damages for termination are limited to what the employee would have been paid had the contract been terminated in accordance with the contract or policy manual; compensation for unfair termination under section 49 is not available
- Claims for wrongful termination and damages must be specifically pleaded and proved; the Court cannot award damages on an unpleaded claim
Court orders
#- 1.1st claimant, Mary Nyambura Marira awarded 12 days leave pay at Kshs.14,380.00 and leave allowance at Kshs.10,644.00, payable with interest at Court rates
- 2.2nd claimant, Veronica Thoni Kihangu awarded leave allowance at Kshs.10,644.00, payable with interest at Court rates
- 3.Where Certificates of Service are not issued, the Respondent directed to issue such unconditionally within the next 14 days
- 4.Other claims fail in their entirety
- 5.Each party shall bear their own costs
- Jurisdiction invoked
- Jurisdiction of the Employment and Labour Relations Court over employment and labour disputes; cause of action pre-dated the Employment Act, 2007, so the repealed Employment Act, Cap 226 applied
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Njambi Marira & 5 Others v Kiambu Unity Finance Co-Operative Union Limited [2016] KEELRC 1235 (KLR)", Case Analysis (2016). Cause No. 323 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1235/eng@2016-03-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.