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ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 959 (KLR)

John Muthengi Muthui v Added Performance Kenya Limited [2018] KEELRC 959 (KLR)

Employment and Labour Relations Court
12 October 2018
MOMAUREEN ONYANGO
1,072 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that fires a sick worker without a hearing must pay maximum compensation, and claims without evidence fail.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a storekeeper from August 1992, sued by memorandum of claim dated 4th July 2013 alleging verbal, unfair and unlawful dismissal. He averred he contracted an occupational illness (high lead levels from battery acid exposure), was sent home, paid for August and September 2012 only, and then told no alternative work was available; he sought a declaration of unfair termination, dues of Kshs.352,751, costs and interest. The respondent denied terminating him, alleging absenteeism, insubordination and breach of contract, and counterclaimed Kshs.717,622 for loss of 148 batteries allegedly attributable to the claimant's negligence and fraud as storekeeper. The claimant testified; the respondent closed its case on 16th April 2018 without calling any witness. The court found the claimant's evidence unrebutted, held the termination was on account of illness and unfair because the procedures in Sections 41 and 43 of the Employment Act were not complied with, and dismissed the counterclaim for want of evidence. The claim for three months' notice pay was refused for want of supporting evidence; the court instead awarded one month's salary in lieu of notice (Kshs.16,537) under Section 35, and maximum compensation of Kshs.198,168 considering the claimant's 22 years of service and occupational disease. The respondent was ordered to pay the claimant's costs on both the claim and counterclaim, with interest on the decretal sum at court rates from the date of judgment. Judgment was delivered at Nairobi on 12th October 2018 by Maureen Onyango, Judge.

Key legal issues

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01

Unfair termination on account of illness

Holding

Termination was unfair as Sections 41 and 43 of the Employment Act were not complied with and the claimant's evidence was unrebutted

Reasoning

The claimant testified that he was sent home due to high lead levels caused by battery acid exposure and was never recalled or given a hearing. The respondent closed its case without calling any witness, so the claimant's account stood unrebutted. The court held the statutory procedure under Sections 41 and 43 was not followed, rendering the termination unfair.

p. 2
02

Remedies for unfair termination

Holding

One month's notice pay of Kshs.16,537 and maximum compensation of Kshs.198,168 awarded

Reasoning

The court awarded notice pay as provided under Section 35 of the Employment Act, using the gross pay on the payslip. For compensation, it took into account the claimant's 22 years of service and the fact that he contracted an occupational disease in employment, awarding the maximum compensation under the Employment Act.

p. 2
03

The counterclaim for loss of 148 batteries

Holding

Counterclaim dismissed with costs

Reasoning

The respondent alleged negligence and fraud causing loss of 148 batteries worth Kshs.717,622 while the claimant was storekeeper. However, the respondent adduced no evidence in support of the counterclaim, having closed its case without calling any witness, and the claimant denied responsibility. The counterclaim therefore failed with costs.

p. 2

Legal principles established

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  • Unproven, unrebutted termination on account of illness without compliance with statutory procedure is unfair termination
  • A party which closes its case without calling evidence bears the consequences of unrebuted opposing evidence

Court orders

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  1. 1.Finding that the termination of the claimant's employment was unfair
  2. 2.Award of one month's salary in lieu of notice of Kshs.16,537
  3. 3.Award of compensation for unfair termination of Kshs.198,168
  4. 4.Dismissal of the respondent's counterclaim
  5. 5.Respondent to pay claimant's costs for both the claim and the counterclaim
  6. 6.Interest on the decretal sum at court rates from date of judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment 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, "John Muthengi Muthui v Added Performance Kenya Limited [2018] KEELRC 959 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/959/eng@2018-10-12

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