Martin Sikuku Wamalwa v Diamond Industries Limited [2018] KEELRC 782 (KLR)
The bottom line
#A Kenyan court refused an unfair dismissal claim because the employee skipped his employer's disciplinary process, but awarded him 16 years' unpaid leave pay.
What this practically means
#Executive summary
#Key legal issues
#Unlawful and unfair dismissal
Claim fails because the Claimant refused the show cause letter and internal disciplinary process
The Claimant admitted refusing to receive the show cause letter on advice of his union. Having by his own admission declined to avail himself of the employer's internal disciplinary procedure, he cannot lay a claim for unlawful and unfair dismissal. The dismissal claim and the notice pay claim therefore fail and are dismissed.
Leave pay
Succeeds; the long-serving employee was entitled to annual leave and the employer had no leave records
Although the Respondent claimed the Claimant was a casual employee paid a daily rate, its witness admitted in cross-examination that the Claimant had worked continuously for a long time. He was therefore entitled to annual leave, and with no leave records showing exhaustion of leave days, the claim for 16 years' leave pay succeeds at Kshs. 174,720.
House allowance, terminal benefits, damages and overtime
All dismissed
The daily rate was ordinarily a consolidated pay rate, defeating the house allowance claim. No basis was laid for terminal benefits or damages, and the overtime claim was not proved. Each of these heads therefore fails.
Legal principles established
#- An employee who refuses to engage the employer's internal disciplinary/grievance process cannot later claim unfair dismissal
- Where an employer has no leave records showing leave was taken, a claim for leave pay succeeds
Court orders
#- 1.Judgment entered in favour of the Claimant in the sum of Kshs. 174,720 being leave pay for 16 years
- 2.Interest at court rates from the date of judgment until payment in full
- 3.Claimant awarded the costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Martin Sikuku Wamalwa v Diamond Industries Limited [2018] KEELRC 782 (KLR)", Case Analysis (2018). Memorandum of Claim dated 14th October 2014, filed 17th October 2016 (Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/782/eng@2018-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.