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ELRCPartially AllowedCause No 559 of 2011· [2018] KEELRC 995 (KLR)

Benard Barasa Ouma & 2 others (suing as the personal representatives of the estate of Benard Barasa Ouma (Deceased) v Steel Structures Limited [2018] KEELRC 995 (KLR)

Employment and Labour Relations Court of Kenya
5 October 2018
ANAbuodha Jorum Nelson
596 words in judgment
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The bottom line

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A deceased watchman's family won Kshs 80,000 in notice pay and service pay from Steel Structures Limited, but lost claims for extra duties pay.

What this practically means

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Executive summary

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The claimants, personal representatives of the estate of Benard Barasa Ouma (deceased), sued Steel Structures Limited alleging the deceased was employed as a watchman cum dog handler and florist at a monthly salary of Kshs 15,000 and was summarily terminated on 9th April 2008 without notice, terminal dues, or pay for dog handling and florist duties. The respondent filed a preliminary objection on 4th December 2017 contending the suit was statute barred, and filed no defence, calling only one witness who alleged the claimant was caught smuggling paint. The court first dismissed the preliminary objection, finding the claim filed on 8th April 2011 fell within the three-year limitation period prescribed by the Act. On the merits, the court applied the repealed Employment Act Cap 226, under which an employer was not obliged to give reasons for termination or conduct a disciplinary hearing, so no procedural unfairness arose. The court rejected the claim for separate pay for dog handling and florist duties, holding the contract permitted the employer to alter duties at management's discretion and that dog handling is synonymous with guard duties; the claimed daily rates for fourteen years also lacked any evidential or pleaded basis and were disallowed. The court awarded one month's salary in lieu of notice (Kshs 15,000) and service pay at 15 days per completed year of service over 13 years (Kshs 65,000), totaling Kshs 80,000, plus costs of the suit. Judgment was delivered at Nairobi on 5th October 2018 by Abuodha Jorum Nelson, Judge.

Key legal issues

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01

Limitation - whether the suit was filed out of time

Holding

The preliminary objection on limitation failed because the claim was filed within the three-year period prescribed by the Act

Reasoning

The statement of claim showed dismissal on 9th April 2008 and filing on 8th April 2011, which is within three years. The court decided the preliminary objection first and found the suit not statute barred, dismissing the objection raised on 4th December 2017.

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02

Entitlement to separate pay for dog handling and florist duties

Holding

The claim was unsustainable as the contract allowed the employer to alter duties at management's discretion and dog handling is synonymous with guard duties

Reasoning

The letter of appointment provided for initial employment as a watchman with duties alterable at management's discretion. The claim for daily wages for dog handling and flower watering over fourteen years lacked any pleaded or documentary basis and was disallowed.

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03

Obligation to give reasons and hold a disciplinary hearing before termination

Holding

The repealed Employment Act Cap 226 imposed no such obligations on the employer

Reasoning

The dismissal occurred on 9th April 2008, before the current Employment Act, so the repealed Cap 226 applied. Under that Act no reasons were required and no disciplinary hearing was mandated, so the respondent had no obligation to justify the termination.

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04

Terminal dues payable despite the lack of a defence

Holding

The claimant was awarded one month's salary in lieu of notice and service pay at 15 days' salary per completed year of service

Reasoning

The respondent filed no defence and relied only on the preliminary objection. The court awarded a month's salary of Kshs 15,000 and service pay computed at 15 days per completed year of service over 13 years, totaling Kshs 80,000, plus costs.

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Legal principles established

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  • Under the repealed Employment Act Cap 226, an employer had no obligation to assign reasons for terminating an employee's services and was not required to take the employee through a disciplinary hearing before termination
  • A claim filed within three years of dismissal is not statute barred under the limitation period prescribed by the Employment Act

Court orders

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  1. 1.Award of one month's salary in lieu of notice of Kshs 15,000
  2. 2.Award of service pay at the rate of 15 days salary for each completed year of service (15,000/30 x 13) of Kshs 65,000
  3. 3.Total award of Kshs 80,000
  4. 4.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Act (repealed)Cap 226
  • Employment Actlimitation period (three years) - referred to as 'the Act'
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unlawful termination and terminal dues)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Benard Barasa Ouma & 2 others (suing as the personal representatives of the estate of Benard Barasa Ouma (Deceased) v Steel Structures Limited [2018] KEELRC 995 (KLR)", Case Analysis (2018). Cause No 559 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/995/eng@2018-10-05

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