Nzeka Musee v Marphie Kenya Limited [2018] KEELRC 1713 (KLR)
The bottom line
#A Kenyan hotel worker suspended pending investigations was ruled constructively fired and awarded maximum compensation because the employer never recalled him.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant's contract of employment was terminated
The suspension was never lifted and the claimant was constructively terminated effective 18.02.2012.
The suspension letter barred the claimant from reporting to duty or appearing near the hotel pending investigations into a fire. The investigations were within the respondent's control, so only the respondent could recall the claimant. Since the respondent never lifted the suspension or recalled him, the claimant was entitled to consider himself terminated; the termination was constructive.
Whether the suit was time barred
The suit filed on 16.11.2012, within three years of termination effective 18.02.2012, was not time barred.
The respondent asserted limitation as a defence. The Court found the termination effective 18.02.2012 and the memorandum of claim filed 16.11.2012, well within the three-year limitation period prescribed by section 90 of the Employment Act, 2007, so the defence failed.
Whether the constructive termination was unfair
The termination was sudden, without notice and hearing, and therefore unfair.
Section 41 of the Employment Act, 2007 entitles an employee to due process of notice and hearing before termination. The claimant was suspended and then treated as terminated without any such process being accorded. The Court therefore found the constructive termination sudden and without due process, hence unfair.
Whether the claimant is entitled to the reliefs prayed for
Notice pay, service pay and maximum 12 months' compensation awarded; leave pay declined; certificate of service granted.
The Court awarded one month's pay in lieu of notice as prayed, service pay of Kshs.27,216.00 for 8 years under section 35(5) as there was no evidence of NSSF membership, and the maximum 12 months' gross pay as compensation under section 49, citing the claimant's long service, good conduct and the criminal court's finding of possible fabrication of the charge. Leave pay failed for want of evidence, and a certificate of service was due under section 51.
Legal principles established
#- Where an employee is suspended pending investigations and the employer never lifts the suspension or recalls the employee, the employee is entitled to treat himself as constructively terminated from the date of suspension.
- A termination effected without notice and hearing as envisaged under section 41 of the Employment Act, 2007 is unfair.
Court orders
#- 1.The respondent to pay the claimant a sum of Kshs.115,681.00 by 01.08.2018 failing which interest to be payable at court rates from the date of judgment till full payment
- 2.The respondent to deliver a certificate of service by 01.08.2018
- 3.The respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nzeka Musee v Marphie Kenya Limited [2018] KEELRC 1713 (KLR)", Case Analysis (2018). Cause No 2322 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1713/eng@2018-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.