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ELRCPartially AllowedCause No. 104 of 2016· [2017] KEELRC 1645 (KLR)

Eunice Jeptoo Kirui v Eastern Produce (K) Ltd [2017] KEELRC 1645 (KLR)

Employment and Labour Relations Court of Kenya
21 February 2017
DMD. K. Njagi Marete
1,660 words in judgment
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The bottom line

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A Kenyan tea picker won her unfair dismissal case but lost the big compensation payout because her payslips failed to clearly show her monthly salary.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a tea picker from 5th August 2008, sued for unlawful, unprocedural and unfair termination of employment allegedly effected on 17th January 2015 (in submissions, 2016) by the respondent's manager, who told her that her work was over. She pleaded breach of her fixed-term contract and violations of sections 41, 43 and 45(2) of the Employment Act, claiming notice pay, leave dues, twelve months' compensation under section 49(1)(c), overtime, breach-of-contract damages, house allowance, a certificate of service, costs and interest. The respondent denied the claim, alleging no cause of action and abusive proceedings, and contended the claimant absconded duty amounting to gross misconduct. The court framed three issues: whether termination was wrongful, unfair and unlawful; entitlement to relief; and costs. On the conflicting accounts, the court applied the balance of probabilities and preferred the claimant's version, noting that the respondent never answered the claimant's submission of falsification of documents. It found wrongful, unfair and unlawful termination. On relief, it awarded one month's salary in lieu of notice (Kshs.12,490.00) and untaken leave (Kshs.12,490.00), with costs to the respondent. It declined to compute compensation for unfair termination because the annexed pay slips did not clearly demonstrate whether payments were based on harvest quantity or monthly salary, the statutory basis for computation. Judgment dated, signed and delivered at Kericho on 21st February 2017 by D. K. Njagi Marete, Judge.

Key legal issues

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01

Whether the claimant's termination was wrongful, unfair and unlawful

Holding

The court found wrongful, unfair and unlawful termination on a balance of probabilities, noting the respondent did not dispute the claimant's submission of falsification of documents

Reasoning

The claimant and respondent gave conflicting accounts of the termination - the claimant alleging dismissal after reporting the company to the union, the respondent alleging absenteeism amounting to gross misconduct. Applying the balance of probabilities, the court found the claimant's account more probable. The respondent also failed to address the allegation of falsification of documents relied on in its case, which weighed against it.

p. 4
02

Whether the claimant was entitled to the relief sought

Holding

Partially - the court awarded one month's salary in lieu of notice and untaken leave, but declined compensation for unfair termination for want of clear evidence of monthly salary

Reasoning

Having succeeded on the liability issue, the claimant was entitled to relief. However, the court held itself unable to compute compensation under section 49 because the annexed pay slips did not clearly show whether payments were based on harvest quantity or monthly salary. Notice pay and untaken leave were awarded at Kshs.12,490.00 each.

p. 4

Legal principles established

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  • Where evidence conflicts, the court determines the more probable case on a balance of probabilities
  • Computation of compensation for unlawful termination must be pegged on the employee's monthly salary, which must be clearly pleaded and demonstrated in evidence

Court orders

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  1. 1.One (1) month salary in lieu of notice of Kshs.12,490.00
  2. 2.Leave due but untaken of Kshs.12,490.00
  3. 3.Costs of the claim borne by the respondent

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 45(2)
  • Employment ActSection 44(4)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 51
  • Regulation of Wages General Orderstatutory hours (45 hours per week)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)

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, "Eunice Jeptoo Kirui v Eastern Produce (K) Ltd [2017] KEELRC 1645 (KLR)", Case Analysis (2017). Cause No. 104 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1645/eng@2017-02-21

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