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ELRCPartially AllowedNot stated in the judgment· [2016] KEELRC 1470 (KLR)

Everline Khamete v Ndupawa Prestige Company Ltd [2016] KEELRC 1470 (KLR)

Employment and Labour Relations Court
1 April 2016
993 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 dismissed an unfair termination claim for lack of proof, but still awarded the employee unpaid leave and wages worth Kshs 65,000.

What this practically means

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Executive summary

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The Claimant, acting in person at filing, sued the Respondent on 17 October 2014 over unfair termination of employment, seeking contractual/statutory entitlements and compensation. She testified that on 13 June 2014 the Respondent's Director took her phone and beat her, and that on returning to work the next day she was sent away without a dismissal letter. The Respondent's Manager testified that she was not dismissed but suspended pending investigations into theft after an impromptu search on 13 June 2014, and produced a suspension letter bearing a signature and identity card number purportedly hers. The Court found the Claimant had failed to demonstrate unfair dismissal under section 47(5) of the Employment Act, 2007, and dismissed that cause of action, deeming it unnecessary to examine the legal consequences of failure to exhaust the conciliation process that had commenced. The Court nonetheless proceeded to statutory entitlements, finding the Claimant was employed in February 2005. It awarded pay in lieu of untaken leave for 2009 to 2014, roughly six months' wages, at Kshs 60,000/-, plus June 2014 wages of Kshs 5,000/-, totalling Kshs 65,000/-. Claims for overtime, public holidays and gratuity were declined for lack of evidential, contractual or statutory basis. The Claimant was denied costs for filing submissions outside the agreed timelines. Judgment was delivered in Nakuru on 1 April 2016 by Radido Stephen, Judge.

Key legal issues

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01

Whether the dismissal was unfair

Holding

The claim failed; the suspension letter with the Claimant's purported signature and ID number showed she was suspended pending investigations, not dismissed

Reasoning

The Claimant testified she was dismissed on 14 June 2014 without a dismissal letter. The Respondent produced a suspension letter dated after an impromptu search on 13 June 2014, bearing a signature and identity card number purportedly belonging to the Claimant. On that document the Court found the Claimant had not discharged her evidential burden under section 47(5) of the Employment Act, 2007, and dismissed the cause of action.

p. 2
02

Entitlement to pay in lieu of untaken leave

Holding

Claimant awarded leave pay for 2009-2014, roughly equivalent to 6 months' wages (Kshs 60,000/-)

Reasoning

Section 28 of the Employment Act entitles an employee to at least 21 days annual leave with full pay each year. Considering section 10(3) and that the Act commenced in 2008, the Court limited the award to leave for 2009 to 2014, assessed at roughly 6 months' wages based on the agreed monthly wage of Kshs 10,000/-

p. 2
03

Wages for June 2014

Holding

Claimant entitled to wages up to 14 June 2014, assessed at Kshs 5,000/-

Reasoning

As the employment relationship, though not unfairly terminated, had come to an end by mid-June 2014, the Claimant was entitled to wages for the days worked up to 14 June 2014, assessed at Kshs 5,000/- on the agreed monthly wage of Kshs 10,000/-

p. 2

Legal principles established

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  • An employee claiming unfair termination bears the burden of demonstrating it under section 47(5) of the Employment Act, 2007
  • Even where unfair termination fails, an employee remains entitled to statutory entitlements accruing from the employment relationship

Court orders

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  1. 1.The cause of action for unfair termination is dismissed
  2. 2.The Claimant is awarded pay in lieu of leave of Kshs 60,000/-
  3. 3.The Claimant is awarded wages for June 2014 of Kshs 5,000/-, total Kshs 65,000/-
  4. 4.The other heads of claim are dismissed
  5. 5.The Claimant is denied costs

Authorities

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Legislation

  • Employment Act, 2007section 47(5)
  • Employment Act, 2007section 28
  • Employment Act, 2007section 10(3)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination and employment entitlements (Employment Act, 2007)

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, "Everline Khamete v Ndupawa Prestige Company Ltd [2016] KEELRC 1470 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1470/eng@2016-04-01

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