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ELRCPartially AllowedEmployment and Labour Relations Court claim, Memorandum of Claim filed 30.05.2016· [2018] KEELRC 1646 (KLR)

Titus Malova v One Way Cleaning Services Limited [2018] KEELRC 1646 (KLR)

Employment and Labour Relations Court
6 July 2018
BOByram Ongaya
1,129 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant sued the respondent seeking Kshs.247,787.00 comprising notice pay, pay in lieu of annual leave for 2010 to 2015, service pay, house allowance, 12 months' salary as compensation for unfair termination, unremitted NHIF deductions, plus interest, costs and a certificate of service. He alleged he was employed as a cleaner from January 2010 at Kshs.7,586.00 per month and terminated on 28.08.2015 without notice or hearing after he missed one shift to care for his sick son. The respondent denied employing the claimant at all and sought dismissal with costs. The court found, on the claimant's testimony and that of CW2 Japheth Onwangala and the respondent's own witnesses, that an employment relationship existed; the respondent's contradictory pleading rendered its case incredible. The termination was held unfair both for want of notice and hearing under section 41 of the Employment Act, 2007 and for want of a valid reason under section 43, following Nicholas Muasya Kyula v Farmchem Limited. The court awarded 12 months' pay compensation under section 49, annual leave pay, service pay under section 35(5), notice pay and the NHIF deductions, but refused the house allowance claim because the claimant failed to show his consolidated pay excluded a rental element. Judgment was entered for Kshs.179,513.00 payable by 01.09.2018 with interest at court rates on default, and the respondent was ordered to pay the costs of the suit.

Key legal issues

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01

Existence of an employment relationship

Holding

The parties were in a contract of employment; the respondent's denial was contradicted by its own witnesses

Reasoning

The claimant testified he was employed in January 2010 as a steward and served at various stations including Shauri Moyo, All Saints Cathedral, CITAM Buruburu and Unilever. CW2 Japheth Onwangala confirmed they were workmates. The respondent's own witnesses confirmed the employment despite the pleading denying it, rendering the respondent's case incredible.

p. 1
02

Fairness of termination

Holding

The termination was unfair both procedurally and substantively

Reasoning

The claimant was sent home without a documented termination letter after one absence due to his son's illness. There was no notice or hearing as required by section 41 of the Employment Act, 2007, and no valid reason under section 43. The belated investigation report of 09.11.2015 by Hellen Ikapel came long after termination and served no purpose.

p. 2
03

Remedies for unfair termination

Holding

12 months' pay as compensation under section 49, plus pay in lieu of annual leave, service pay, notice pay and NHIF deductions awarded

Reasoning

The claimant desired to continue in employment, did not contribute to the termination, and had served for a considerably long period. He was not a member of a pension scheme or NSSF, entitling him to service pay under section 35(5). The consolidated pay defeated the house allowance claim.

p. 2

Legal principles established

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  • An employer must have internal systems and processes to investigate and verify alleged misconduct before terminating employment
  • Dismissal must be fair both procedurally (notice and hearing) and substantively (valid reason)

Court orders

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  1. 1.The respondent to pay the claimant a sum of Kshs.179,513.00 by 01.09.2018 failing interest to be payable thereon at Court rates from the date of judgment till full payment
  2. 2.The respondent to pay costs of the suit

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 49
  • Employment Actsection 28
  • Employment Actsection 35(5)
  • Regulation of Wages (General) Ordernot specified

Cases cited (1)

  • Nicholas Muasya Kyula –Versus- Farmchem Limited
    [2012] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 49, 35(5), 28 invoked); Article 162(2) jurisdiction implied

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, "Titus Malova v One Way Cleaning Services Limited [2018] KEELRC 1646 (KLR)", Case Analysis (2018). Employment and Labour Relations Court claim, Memorandum of Claim filed 30.05.2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1646/eng@2018-07-06

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