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ELRCPartially AllowedMemorandum of Claim dated 13th June 2017 (as amended 7th July 2017) - Mombasa· [2019] KEELRC 186 (KLR)

Mastisa Chang’oka Ndeme v Modern Coast Express Ltd [2019] KEELRC 186 (KLR)

Employment and Labour Relations Court
11 December 2019
LNLINNET NDOLO
1,593 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled a bus conductor was unfairly sacked and must be refunded salary deductions made without following legal process.

What this practically means

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Executive summary

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The Claimant, a bus conductor employed by the Respondent from 2011 (the Respondent says from September 2012), claimed unlawful termination, refund of unlawful salary deductions, notice pay and compensation. He alleged that following a bus accident in June 2014 while he supervised cleaning, he was surcharged Kshs. 6,582 monthly for seven months without explanation, reducing his salary to Kshs. 5,566, and that in early 2015 he was sent on unexplained leave and then barred at the gate. The Respondent, though it filed a Response, did not appear at the hearing; the matter proceeded ex parte with the Response on record. The Respondent alleged the Claimant negligently allowed a non-employee to drive, resulting in the accident, that he was surcharged with his consent, and that he deserted duty from 17th January 2015 after ignoring a show cause letter and disciplinary hearing. The court found the Respondent's documentary evidence contradictory - three letters giving inconsistent accounts and dates of the alleged desertion - and unauthenticated, as the maker was never called. The desertion defence collapsed and unlawful, unfair termination was found. On remedies, the court awarded six months' salary in compensation (Kshs. 72,888), one month's notice pay (Kshs. 12,148) and a refund of the surcharge for seven months (Kshs. 46,074), totalling Kshs. 131,110, with interest at court rates from the date of judgment and costs to the Claimant.

Key legal issues

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01

Whether the employment was unlawfully terminated or the Claimant deserted duty

Holding

The Respondent's desertion defence collapsed; termination was unlawful and unfair

Reasoning

The Respondent relied on contradictory letters - one dated 17th January 2015 alleging a show cause letter, another dated 5th February 2015 alleging a show cause letter on theft allegations, and a third dated 4th February 2015 with no forwarding address. The Claimant denied receipt. The Respondent did not appear at trial nor call a witness to authenticate the letters. The defence therefore failed and unlawful and unfair termination was inferred.

p. 3
02

Whether the salary deductions (surcharges) were lawful

Holding

The surcharge was unlawful for want of Section 41 due process and non-disclosure of the amount

Reasoning

The Respondent deducted the Claimant's salary for seven months to cover accident damage without complying with Section 41 of the Employment Act and without disclosing the total surcharge or its tabulation. Citing Kenya National Library Services Board v Beatrice N. Ayoti, the court held the refund claim succeeded.

p. 3

Legal principles established

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  • A surcharge on an employee's salary must comply with the due process requirements of Section 41 of the Employment Act, including disclosure of the amount surcharged
  • Contradictory documentary evidence whose maker is not called to authenticate it cannot sustain a defence of desertion

Court orders

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  1. 1.6 months' salary in compensation of Kshs. 72,888
  2. 2.1 month's salary in lieu of notice of Kshs. 12,148
  3. 3.Refund of unlawful surcharge of Kshs. 46,074 (6,582 x 7)
  4. 4.Total judgment of Kshs. 131,110 with interest at court rates from the date of judgment until payment in full
  5. 5.Claimant to have the costs of the case

Authorities

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Legislation

  • Employment ActSection 41

Cases cited (1)

  • Kenya National Library Services Board v Beatrice N. Ayoti
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court first-instance jurisdiction under the Employment Act (judgment invokes Section 41 of the Employment Act); no express constitutional basis pleaded

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, "Mastisa Chang’oka Ndeme v Modern Coast Express Ltd [2019] KEELRC 186 (KLR)", Case Analysis (2019). Memorandum of Claim dated 13th June 2017 (as amended 7th July 2017) - Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/186/eng@2019-12-11

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