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ELRCPartially AllowedCause No. 139 of 2015· [2018] KEELRC 28 (KLR)

Mohamed Kafafa Abduba v Colour Crops Limited [2018] KEELRC 28 (KLR)

Employment and Labour Relations Court of Kenya
30 July 2018
2,559 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 ruled that a 'full and final settlement' payment cannot block an unfair termination claim, and employers must hear employees even for absconding.

What this practically means

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Executive summary

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The claimant, employed as a watchman from April 2008 under successive fixed-term contracts, was injured at work on 13th October, 2013 and thereafter found his employment terminated without notice or hearing. He claimed underpayments, notice pay, annual leave, overtime, public holiday pay, gratuity and compensation. The respondent defended the claim on the basis that the claimant absconded duty, that all dues were computed and paid through the Labour Officer (Kshs.22,172.00 deposited on 6th December, 2013) in full and final settlement, and that claims predating the 2011 contract were time barred. The court held that claims arising from the contract ending 23rd June, 2011 were time barred under section 90 of the Employment Act, confining the claim to the contract commencing 23rd June, 2011. On the discharge question, applying section 35(4) and cited authorities, the court held that a discharge clause cannot negate statutory rights and does not bar a claim for unfair termination. On fairness, although an employee absent without good cause may face summary dismissal under section 44(4), the respondent never issued a notice to show cause nor contacted the claimant, contrary to section 41(2), rendering the termination procedurally unfair under section 45. The court awarded underpayments of Kshs.82,143.00 based on the applicable wage orders for a watchman, and compensation of one month's gross wage (Kshs.11,248.10) under section 49, offset by the Kshs.22,172.00 payable by the Labour Officer, subject to section 49(2). Overtime, leave, public holiday and gratuity claims failed for want of proof. Each party was ordered to bear its own costs. Judgment delivered at Nakuru on 30th July, 2018 by M. Mbaru, J.

Key legal issues

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01

Limitation of claims under ended fixed-term contracts

Holding

Claims arising from the contract ending 23rd June, 2011 are time barred; only claims under the contract from 23rd June, 2011 to termination on 13th October, 2013 are competent

Reasoning

Section 90 of the Employment Act requires claims within three years. Each fixed-term contract stood on its own terms and ended with payment of gratuity. The suit filed on 18th May, 2015 was over three years after the end of the earlier contract, so claims for underpayments, overtime and terminal dues relating to that period are time barred.

p. 2
02

Effect of full and final payment/discharge

Holding

Payment of terminal dues through the Labour Officer and any discharge does not bar a claim for unfair termination

Reasoning

Section 35(4) of the Employment Act preserves an employee's right to dispute the lawfulness or fairness of termination. Citing Grace Wanjiku Maina, Simon Muguku Gichuki and Solomon Weche Makhotsa, the court held that a discharge clause cannot negate statutory rights and a discharge voucher negating rights in law is null and void. Jurisdiction to hear the unfair termination claim remains with the court.

p. 3
03

Procedural fairness in termination for alleged absconding

Holding

Termination was procedurally unfair because the respondent never issued a notice to show cause or contacted the claimant before terminating

Reasoning

While absence without good cause may invite summary dismissal under section 44(4), the employer must still address section 41(2) by issuing a show cause notice and hearing the employee. Ms Mureu admitted nobody called the claimant despite having his contact details and no notice to show cause was issued. Payment in lieu of notice does not cure this illegality, resulting in procedural unfairness under section 45.

p. 4
04

Remedies

Holding

Underpayment of Kshs.82,143.00 awarded based on wage orders for a watchman/security guard; compensation of one month's gross wage under section 49 for procedural unfairness; other heads refused

Reasoning

The claimant was paid Kshs.4,800 gross while wage orders for 2011 and 2012/2013 entitled him to Kshs.11,248.10 inclusive of house allowance. Overtime, leave and public holiday claims failed as records showed compliance with sections 27 and 28. Gratuity was not an agreed term of the subject contract. For the section 41(2) breach, one month's gross wage under section 49 was appropriate.

p. 5

Legal principles established

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  • A discharge clause or voucher cannot negate rights established in law or bar a claim for unfair termination
  • A discharge voucher with a term negating statutory rights is null and void
  • An employee absent due to sickness must inform the employer within reasonable time and produce a medical certificate, failing which absence invites summary dismissal under section 44(4)
  • Even where an employee absconds, the employer must comply with section 41(2) before termination; failure results in procedural unfairness under section 45

Court orders

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  1. 1.Judgment entered for the claimant for underpayment amounting to Kshs.82,143.00
  2. 2.Compensation at Kshs.11,248.10 for procedural unfairness
  3. 3.Dues to be paid less Kshs.22,172.00 the claimant should collect from the Labour officer
  4. 4.Payable dues subject to section 49(2) of the Employment Act, 2007
  5. 5.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 10(3)(c)
  • Employment Act, 2007section 90
  • Employment Act, 2007section 35(4)
  • Employment Act, 2007section 35
  • Employment Act, 2007section 44(4)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 30
  • Employment Act, 2007section 41(2)
  • Employment Act, 2007section 45
  • Employment Act, 2007section 46
  • Employment Act, 2007section 47
  • Employment Act, 2007section 49
  • Employment Act, 2007section 49(2)
  • Employment Act, 2007section 27
  • Employment Act, 2007section 28

Cases cited (6)

  • Grace Wanjiku Maina versus Board of Trustees, Nanyuki Cottage Hospital
    [2017] eKLR
  • Duncan Mwirigi Arithi –Versus- Jhpiego Kenya
    [2015] eKLR
  • Simon Muguku Gichuki versus Taifa Sacco Society Limited
    [2012] eKLR
  • Solomon Weche Makhotsa versus Imara Steel Mills Limited
    [2016] eKLR
  • Daniel Kipkurui Keter versus Securex Agencies (K) Limited
    [2018] eKLR
  • Joseph Njoroge Kiama versus Summer Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the 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, "Mohamed Kafafa Abduba v Colour Crops Limited [2018] KEELRC 28 (KLR)", Case Analysis (2018). Cause No. 139 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/28/eng@2018-07-30

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