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ELRCPartially AllowedNot stated in judgment· [2016] KEELRC 1729 (KLR)

Ruth Wanjiku Thige v Mobicom (K) Limited [2016] KEELRC 1729 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
5 February 2016
MNMathews Nderi Nduma
926 words in judgment
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The bottom line

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A Kenyan court refused unfair termination compensation because the employee couldn't prove dismissal, but still paid her earned salary and leave.

What this practically means

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Executive summary

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The claimant, employed as a receptionist and later promoted to sales executive, was transferred from the respondent's Nairobi head office to the Migori branch in August 2011. She objected by letter dated 12th August 2011, citing a breast-feeding baby, a child's health complications and lack of notice. On 13th August 2011 an internal email stated that she and five other employees were no longer employees of the respondent, with no reason given. She sued for a declaration that her termination was wrongful and unfair, seeking notice pay, August 2011 salary, accumulated leave for seven years and severance pay. The respondent's position, in its advocate's reply and statement of defence, was that she was transferred as stock controller on the same terms and, rather than reporting, absconded; her position remained open and she was free to return. No oral evidence was adduced; the parties relied on pleadings and documents. The court held the claimant failed to prove on a balance of probability that her employment was terminated, finding instead that she refused the transfer and absconded. The unfair termination claim and the notice pay claim were dismissed. However, the court awarded Kshs.30,000.00 for August 2011 salary and Kshs.147,000.00 in lieu of seven years' untaken leave, which was undisputed. Severance pay was refused because the claimant's payslip showed NSSF registration and remitted contributions. Total award: Kshs.177,000.00 with interest at court rates from filing until payment in full. Both parties being partly successful, each was ordered to bear their own costs.

Key legal issues

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01

Whether employment was wrongfully and unfairly terminated

Holding

No - the claimant refused a transfer and absconded; she failed to prove termination

Reasoning

The respondent transferred the claimant from Nairobi to Migori; she objected and never reported. In its response to the demand letter and in the defence, the respondent stated she could take up her position. No oral evidence contradicted this. The claim for unfair termination therefore failed.

p. 2
02

Entitlement to August 2011 salary

Holding

Awarded Kshs.30,000.00

Reasoning

The claimant had served in August 2011 and was therefore entitled to her salary for that month.

p. 2
03

Accumulated leave for seven years

Holding

Awarded Kshs.147,000.00

Reasoning

The claim was not disputed in the statement of defence and no oral evidence was adduced to the contrary, so it was proved on a balance of probability at 21 days per year for seven years.

p. 2
04

Severance pay

Holding

Dismissed

Reasoning

The claimant's own payslip showed NSSF registration with monthly contributions deducted and remitted, disqualifying the severance claim.

p. 2

Legal principles established

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  • A claimant who alleges unfair termination must prove termination on a balance of probability
  • An employee registered with NSSF whose contributions are remitted is not entitled to severance pay

Court orders

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  1. 1.Kshs.147,000.00 in lieu of leave
  2. 2.Kshs.30,000.00 being salary for August 2011
  3. 3.Total award of Kshs.177,000.00 payable with interest at court rates from date of filing suit till payment in full
  4. 4.Each party to bear their own costs of the suit
Jurisdiction invoked
Employment and labour relations dispute under the court's first-instance jurisdiction (not expressly cited in judgment)

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, "Ruth Wanjiku Thige v Mobicom (K) Limited [2016] KEELRC 1729 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1729/eng@2016-02-05

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