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ELRCPartially AllowedCause Number 372 of 2014· [2016] KEELRC 1638 (KLR)

Martin Vindija Nyambuku v Mbukoni Logistics Limited [2016] KEELRC 1638 (KLR)

Industrial Court of Kenya
26 February 2016
2,327 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Resigning without notice cost an employee one month's salary, but he still won service pay and leave pay from the Kenyan employment court.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as an Operations/Marketing Assistant from 1st August 2009 at Kshs. 8,000 monthly, resigned on 4th July 2013 citing frustration. He claimed service pay, annual leave pay, overtime for three extra hours daily over 48 months, a Certificate of Service, costs and interest. The Respondent conceded annual leave pay but denied excess hours, said the Claimant refused NSSF registration, and counterclaimed one month's notice pay for resignation without notice. The Court granted annual leave pay of Kshs. 32,000. It held that failure to issue termination notice does not render an employee ineligible for service pay, since Section 35(1)(c) of the Employment Act defines what a contract of service is, not eligibility for service pay, and the Claimant was not registered under any scheme contemplated by Section 35(6); service pay was awarded at 18 days' salary per completed year, totalling Kshs. 22,153. The overtime claim was declined: the Claimant was an unsupervised, mobile field officer, the CFS operated from 9.00 a.m. to 5.00 p.m., and the earlier Mwongela decision relied on by the Claimant was distinguishable as it was decided ex parte on unchallenged evidence. The Counterclaim succeeded: the Claimant was ordered to pay the Respondent one month's salary in lieu of notice (Kshs. 8,000). A Certificate of Service was ordered to issue forthwith, and no order was made on costs and interest.

Key legal issues

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01

Eligibility for service pay where the employee resigned without notice

Holding

The Claimant is eligible for service pay; failure to issue notice does not change the character of his contract or disqualify him, since Section 35(1)(c) describes what a contract of service is, not eligibility for service pay, and he was not registered under any scheme under Section 35(6).

Reasoning

The contract was terminable by one month's notice or pay in lieu. Failure to give notice attracts its own remedy (pay in lieu of notice) but does not alter the nature of the contract. The Claimant was not registered with NSSF or any provident/gratuity scheme under Section 35(6), so he remains entitled to service pay, computed at 18 days' salary per year completed.

p. 4
02

Overtime pay for a field officer claiming excess hours

Holding

Overtime claim declined; the Claimant was a mobile, unsupervised field officer and the CFS operated only from 9.00 a.m. to 5.00 p.m.

Reasoning

Unlike the ex parte Mwongela decision, the Respondent called the Director and Supervisor who testified the CFS was not operational around the clock. The Claimant was not tied to a clocking system, was unsupervised in the field, and the contract's omission of a closing time was explained as a typographical error. No excess hours or Sunday work were proved.

p. 4
03

Counterclaim for one month's notice pay on resignation without notice

Holding

Allowed; the Claimant, paid monthly, was required to give one month's notice or pay one month's salary in lieu, and gave none.

Reasoning

The Claimant resigned by letter dated 4th July 2013 and left the same day without written notice. Under Sections 35(1)(c) and 36 of the Employment Act, a monthly-paid employee must give or receive one month's notice or pay in lieu. He therefore owed the Respondent Kshs. 8,000.

p. 3

Legal principles established

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  • Failure to issue notice of termination does not render an employee ineligible for service pay under Section 35 of the Employment Act 2007
  • A prior ex parte award on unchallenged evidence does not bind a court in a later cause where both parties have given evidence

Court orders

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  1. 1.The Respondent shall pay to the Claimant annual leave pay at Kshs. 32,000 and service pay at Kshs. 22,153 - total Kshs. 54,153
  2. 2.Certificate of Service to issue
  3. 3.No order on the costs and interest
  4. 4.The Claimant to pay the Respondent 1 month salary in lieu of notice at Kshs. 8,000 in terms of the Counterclaim

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)
  • Employment Act 2007Section 35(1)
  • Employment Act 2007Section 35(5)
  • Employment Act 2007Section 35(6)
  • Employment Act 2007Section 36
  • Employment Act 2007Section 40
  • N.S.S.F Act 2013Section 19(1)

Cases cited (1)

  • Andrew Mwongela v. Mbukoni Logistics Limited
    Industrial Court Cause Number 237 'B' of 2014
Jurisdiction invoked
Jurisdiction under the Industrial Court over employment and labour relations disputes (Issue in Dispute: unfair and unlawful termination), award under Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Martin Vindija Nyambuku v Mbukoni Logistics Limited [2016] KEELRC 1638 (KLR)", Case Analysis (2016). Cause Number 372 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1638/eng@2016-02-26

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