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ELRCPartially AllowedCause No 430 of 2018· [2019] KEELRC 558 (KLR)

Johana Mbita Mangale v China Dalian International Economic and Technical Cooperative Group Limited [2019] KEELRC 558 (KLR)

Employment and Labour Relations Court
24 October 2019
JRJames Rika
713 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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This was an undefended employment claim heard by formal proof before the Employment and Labour Relations Court at Mombasa. The Claimant, a Security Guard employed by the Respondent from 15th November 2014 at a facility at Taru along the Mombasa-Nairobi highway, last earned Kshs. 24,255 monthly. He fell ill on 26th December 2017 and was granted sick off; when he reported back to work on 28th December 2017 his supervisor told him his services had been terminated. He was paid Kshs. 4,570 and told never to return. The Respondent acknowledged service of the Statement of Claim and Notice of Summons on 13th July 2018 but filed no response and did not attend court; formal proof proceeded on 29th July 2019. The Court found the Claimant had presented adequate oral and documentary evidence establishing employment and unfair termination without notice or any hearing. The Court awarded annual leave of Kshs. 72,765, twelve months' salary as compensation of Kshs. 291,060, notice pay of Kshs. 24,255, and December 2017 salary (awarded at Kshs. 22,255), totalling Kshs. 412,355, with interest at 14% per annum from the date of judgment and costs to the Claimant. It declared the termination unfair and ordered a Certificate of Service to issue, but declined to declare the employment permanent or to order a recommendation letter, holding the latter discretionary. Judgment was dated and delivered at Mombasa on 24th October 2019.

Key legal issues

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01

Unfair termination

Holding

Termination was unfair as there was no notice and no hearing

Reasoning

The Claimant fell ill, was granted sick off, and reported back to work only to be told his services were terminated. He was paid Kshs. 4,570 and told never to return. No charge was presented and no disciplinary forum heard him. The Respondent filed no response and the uncontroverted evidence established unfair termination.

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02

Entitlement to terminal benefits and dues

Holding

Claimant awarded annual leave, 12 months' compensation, notice pay and December 2017 salary

Reasoning

The Claimant proved employment and the terms were undisputed. He was denied notice and annual leave and left without terminal benefits. The unchallenged evidence supported the monetary claims, and judgment was entered accordingly upon formal proof in the undefended claim.

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03

Declaration of permanent employment and recommendation letter

Holding

Both prayers refused

Reasoning

The Court found no utility in declaring the Claimant a permanent employee where there was no suggestion he was not in regular employment. A recommendation letter is discretionary for the employer; only the Certificate of Service is mandated by Section 51 of the Employment Act.

Legal principles established

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  • An employer who terminates employment without notice and without any hearing unfairly terminates the contract
  • Under Section 51 of the Employment Act an employer is required to issue a Certificate of Service, but a recommendation letter is discretionary

Court orders

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  1. 1.It is declared that termination was unfair
  2. 2.The Respondent shall pay annual leave at Kshs. 72,765; compensation equivalent of 12 months' salary at Kshs. 291,060; notice at Kshs. 24,255; and salary for December 2017 at Kshs. 22,255 – total Kshs. 412,355
  3. 3.Certificate of Service to issue
  4. 4.Costs to the Claimant
  5. 5.Interest allowed at 14% per annum from the date of Judgment till payment is made in full

Authorities

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Legislation

  • Employment ActSection 51
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment claims (not expressly cited in judgment)

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, "Johana Mbita Mangale v China Dalian International Economic and Technical Cooperative Group Limited [2019] KEELRC 558 (KLR)", Case Analysis (2019). Cause No 430 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/558/eng@2019-10-24

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