Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedCause No. 1076 of 2014· [2016] KEELRC 1456 (KLR)

Erick Shisiali Khahu v Varga Limited T/A Kenya Motor Sprots Club (Cause 1076 of 2015) (Employment and Labour) [2016] KEELRC 1456 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
1 April 2016
MNMathews N. Nduma
965 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer that quietly dismissed a worker through endless 'compulsory leave' was ordered to pay him Kshs 256,000 for unlawful termination.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent as a waiter in April 2009 at Kshs 12,000 per month and later promoted to barman, sued for compensation for wrongful and unlawful termination and terminal benefits. He claimed his salary had risen to Kshs 25,000, that the Respondent failed to remit Kshs 6,000 in NSSF contributions, and that after a Polo tournament in July 2013 during which he issued customers an ETR receipt, Mr Rajiv Shah sent him on leave and, despite successive extensions of leave and promises to recall him, never recalled him - conduct he said amounted to wrongful termination. The Respondent denied the salary of Kshs 25,000, alleged the Claimant misappropriated bar sales, and maintained the termination was lawful, procedural and fair. The Respondent failed to attend the hearing despite service acknowledged by its advocates, and the matter proceeded ex parte, leaving the Claimant's testimony uncontroverted. The court found the Claimant served diligently and was wrongfully and unlawfully dismissed without notice and without a chance to show cause, and was humiliated by being sent on compulsory leave with a false promise of recall. It found the Respondent's payment vouchers did not reflect the salaries it alleged and accepted the salary of Kshs 25,000. Relying on Section 49 of the Employment Act 2007, the court awarded eight months' salary (Kshs 200,000) as compensation, plus one month's notice pay (Kshs 25,000), unremitted NSSF dues (Kshs 6,000) and Kshs 25,000 for the unpaid compulsory leave period, totalling Kshs 256,000, with interest at court rates from filing and costs to the Claimant.

Key legal issues

#
01

Wrongful and unlawful termination

Holding

The court found the dismissal wrongful and unlawful; the Claimant was sent on compulsory leave with a false promise of recall and never recalled, and was not given an opportunity to show cause.

Reasoning

The Claimant testified under oath and the Respondent, though served with a hearing notice acknowledged by its advocates, failed to attend; the matter proceeded ex parte and the Claimant's testimony remained uncontroverted. The court found the Claimant served diligently and was dismissed without notice or a hearing. Being kept in limbo on compulsory leave amounted to humiliation, and the Claimant proved his case on a balance of probability, attracting compensation under Section 49 of the Employment Act 2007.

p. 2
02

Salary at time of termination and quantum of compensation

Holding

The court found the Claimant earned Kshs 25,000 per month and awarded eight months' salary plus notice pay, unremitted NSSF dues and unpaid compulsory leave period.

Reasoning

The Respondent's own payment vouchers did not reflect the salaries it alleged (Kshs 12,000 or Kshs 15,000), suggesting piecemeal payment. The court therefore accepted the Claimant's figure of Kshs 25,000. Considering the loss of income, the several months on unpaid leave, the absence of a certificate of service and unpaid terminal benefits, and four years of diligent service with curtailed career prospects, the court awarded eight months' salary as compensation plus terminal benefits, with interest and costs.

p. 2

Legal principles established

#
  • An employee dismissed without notice and without a chance to show cause is wrongfully and unlawfully terminated and entitled to compensation under Section 49 of the Employment Act.

Court orders

#
  1. 1.Eight months' salary as compensation for wrongful and unlawful dismissal in the sum of Kshs 200,000
  2. 2.Kshs 25,000 being one month's salary in lieu of notice
  3. 3.Kshs 6,000 being unremitted NSSF dues
  4. 4.Kshs 25,000 for the period the Claimant stayed on unpaid compulsory leave between 18th September and 13th October 2013
  5. 5.Award payable with interest at court rates from date of filing suit till payment in full
  6. 6.Respondent to pay the costs of the suit

Authorities

#

Legislation

  • Employment ActSection 49
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (compensation under Section 49)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Erick Shisiali Khahu v Varga Limited T/A Kenya Motor Sprots Club (Cause 1076 of 2015)  (Employment and Labour) [2016] KEELRC 1456 (KLR)", Case Analysis (2016). Cause No. 1076 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1456/eng@2016-04-01

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