Everline Khamete v Ndupawa Prestige Company Ltd [2016] KEELRC 1470 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the dismissal was unfair
The claim failed; the suspension letter with the Claimant's purported signature and ID number showed she was suspended pending investigations, not dismissed
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.
Entitlement to pay in lieu of untaken leave
Claimant awarded leave pay for 2009-2014, roughly equivalent to 6 months' wages (Kshs 60,000/-)
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/-
Wages for June 2014
Claimant entitled to wages up to 14 June 2014, assessed at Kshs 5,000/-
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/-
Legal principles established
#- 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
#- 1.The cause of action for unfair termination is dismissed
- 2.The Claimant is awarded pay in lieu of leave of Kshs 60,000/-
- 3.The Claimant is awarded wages for June 2014 of Kshs 5,000/-, total Kshs 65,000/-
- 4.The other heads of claim are dismissed
- 5.The Claimant is denied costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination and employment entitlements (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.