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ELRCPartially AllowedCause No 895 of 2016· [2018] KEELRC 2260 (KLR)

German Waweru Njonjo v Civicon Limited [2018] KEELRC 2260 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court), Mombasa
20 March 2018
JRJames Rika
1,367 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court ruled a 'summary dismissal' letter with one month's notice wasn't summary dismissal, and employers must prove salary deductions with attendance records.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Driver from 18th December 2010 until his contract was terminated effective 4th October 2011, claimed terminal dues of Kshs. 240,315 comprising severance pay, overtime, refunds of deductions for absenteeism, and one month's salary in lieu of notice, plus costs and interest. The Respondent conceded the employment but denied all entitlements, arguing that severance pay applies only on redundancy, that the contract excluded overtime, that deductions were for proven absenteeism, and that the one-month notice in the termination letter negated any notice claim. The matter was determined on pleadings, documents and submissions after transfer from Nairobi to Mombasa. The Court found the termination was not summary dismissal despite the letter's title, because a full month's notice was given. It declined to entertain unfair termination arguments since compensation was never pleaded and the Claimant had not met the qualifying period under Section 45(3) of the Employment Act as it then stood. Severance pay failed because it applies on redundancy and contract gratuity required successful completion of the contract. Overtime failed because the contract expressly stated 'Not Applicable' and no excess hours were particularised. However, the deduction of Kshs. 15,750 for alleged absenteeism was unjustified, no attendance register or clocking records having been produced. The Court ordered refund of Kshs. 15,750 and made no order on costs.

Key legal issues

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01

Whether the termination constituted summary dismissal

Holding

The Claimant was not summarily dismissed because the letter gave a one-month notice period

Reasoning

Section 44(1) defines summary dismissal as termination without notice or with less notice than the employee is entitled to. The dismissal letter, though titled 'Summary Dismissal', gave a one-month notice period, and the Claimant did not show the notice given was less than what he was entitled to under statute or contract.

p. 2
02

Whether the deduction of Kshs. 15,750 was lawful

Holding

The deduction was unjustified and must be refunded

Reasoning

Section 19(1) of the Employment Act governs lawful deductions. The Respondent produced no attendance register or clocking system evidence to show the Claimant was absent for 189 hours, nor did it explain the computation of the deducted sum. The burden of justifying the deduction was not discharged.

p. 2
03

Whether unfair termination compensation could be granted

Holding

No; it was not pleaded and the Claimant had not met the qualifying period under Section 45(3)

Reasoning

The Claimant prayed for specific monetary heads but did not plead compensation for unfair termination, and submissions cannot substitute for amendment of pleadings. In any event, at the time of termination Section 45(3) was still valid law, and the Claimant's service did not meet its qualifying period. The Court therefore declined to examine the reasons or procedure of termination.

p. 2

Legal principles established

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  • Summary dismissal under Section 44(1) occurs only where termination is without notice or with less notice than the employee is entitled to; a termination with full contractual notice is not summary dismissal
  • Closing submissions cannot be used to introduce relief not pleaded; submissions do not play the role of amendment of pleadings
  • An employer must justify salary deductions under Section 19(1) of the Employment Act; absent attendance records or a clocking system, deductions for absenteeism are unjustified

Court orders

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  1. 1.The Respondent shall refund to the Claimant the sum of Kshs. 15,750, deducted from the Claimant's salary
  2. 2.No order on the costs

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Employment Act 2007Sections 19(1), 40, 41, 43, 44(1), 45, 45(3), 47(5)

Cases cited (1)

  • Shankar Saklani v. DHL Global Forwarding (K) Ltd
    (2012) e-KLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (claim filed at the Industrial Court)

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, "German Waweru Njonjo v Civicon Limited [2018] KEELRC 2260 (KLR)", Case Analysis (2018). Cause No 895 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2260/eng@2018-03-20

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