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ELRCPartially AllowedCause No 314 of 2017· [2018] KEELRC 582 (KLR)

Samuel Muraguri Kiragu v Aegis Construction Limited [2018] KEELRC 582 (KLR)

Employment and Labour Relations Court
13 November 2018
NMNzioki wa Makau
806 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 awarded a dismissed excavator operator nearly Kshs 314,000 because his employer gave no reason for ending his job.

What this practically means

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Executive summary

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The claimant, employed as an excavator operator from December 2014 until 30th June 2017 at a basic salary of Kshs. 28,547/-, sued for unfair termination. He alleged no misconduct was proved, no notice to show cause was issued, and his dismissal was unfair, unprocedural and unlawful. He sought salary arrears for January 2016, leave pay for two years, one month's salary in lieu of notice, compensation, loss of income, costs and interest. The respondent appeared through the Federation of Kenya Employers but filed no defence; successive firms came on record and the suit proceeded undefended. The claimant testified that he was directed by a site agent's letter to hand over the excavator and report to the yard for further action, and on reporting was given no assignment. The court found this amounted to constructive dismissal, with no reason or cause given and no procedural safeguards under Section 41 of the Employment Act accorded. Bank statements established salary between Kshs. 26,614/- and Kshs. 29,229/- after deductions. The respondent's assertion that the claimant quit voluntarily was unsupported by any evidence. Judgment was entered for the claimant with salary in lieu of notice of Kshs. 28,547/-, leave pay for two years of Kshs. 57,094/-, eight months' salary compensation of Kshs. 228,376/- subject to statutory deductions under Section 49(1)(c), a certificate of service under Section 50, interest at court rates, and costs of the suit.

Key legal issues

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01

Fairness of termination

Holding

The dismissal was unfair and unprocedural; no reason or cause was given and Section 41 procedural safeguards were not accorded

Reasoning

The site agent's letter sent the claimant back to the yard for further action without any stated reason. He reported as directed but was given no assignment. No notice to show cause or hearing preceded the termination, and the respondent filed no defence or evidence to rebut the claim, leaving the claimant's testimony uncontroverted and proved on a balance of probabilities.

p. 1
02

Quantum of salary

Holding

Salary established by bank statements as between Kshs. 26,614/- and Kshs. 29,229/- after deductions; notice pay computed at Kshs. 28,547/-

Reasoning

The claimant attached bank statements evidencing his salary payments. The court found the lowest sum earned was Kshs. 26,614/- and the highest Kshs. 29,229/- after deductions, and used the pleaded figure of Kshs. 28,547/- for the notice computation.

p. 1

Legal principles established

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  • Where an employee is sent back to the yard for further action and given no assignment, and no reason or cause for dismissal is given without procedural safeguards, this constitutes constructive dismissal entitling the employee to notice and compensation

Court orders

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  1. 1.Salary in lieu of notice Kshs. 28,547/-
  2. 2.Leave pay for 2 years Kshs. 57,094/-
  3. 3.8 months salary compensation Kshs. 228,376/-
  4. 4.Costs of the suit
  5. 5.Interest on the sums in (a), (b) and (c) at court rates from date of judgment till payment in full
  6. 6.The compensation sum to be subject to statutory deductions in terms of Section 49(1)(c) of the Employment Act
  7. 7.A certificate of service in terms of Section 50 of the Employment Act

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 44(a-e)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 50

Cases cited (1)

  • Dan Owuor Ongado v Lake Basin Development Authority
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Employment Act; not expressly cited in the excerpt)

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, "Samuel Muraguri Kiragu v Aegis Construction Limited [2018] KEELRC 582 (KLR)", Case Analysis (2018). Cause No 314 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/582/eng@2018-11-13

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