Aggrey Kimiya Mukiza v Roy Parcels Services Limited [2019] KEELRC 814 (KLR)
The bottom line
#A Kenyan court ruled that overstaying approved leave justified dismissal, but the employer still had to pay one month's notice and accrued leave.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal was for a valid reason and following fair procedure
The dismissal was justified because the claimant extended his leave without permission, but summary dismissal without notice pay was converted to normal termination
The court found the claimant obtained leave of absence from 24th December 2015 but overstayed until 5th January 2016 without informing the employer of his whereabouts. Although the holiday season and the purpose of the absence were mitigating factors, the claimant had a recent warning for absence and took the liberty to extend leave without permission, entitling the employer to terminate. However, summary dismissal without notice pay was gross punishment, so the court converted it to normal termination with one month's notice pay.
Whether the claimant was entitled to unpaid leave for three years
Awarded; the claimant proved he was only granted leave in 2015 and the respondent led no contrary evidence
The claimant testified that he was granted annual leave only in 2015 and not in the other years he worked. The respondent's witness provided no evidence to the contrary. The court found the claim of Kshs. 30,321 for three years' unpaid leave proved on a balance of probabilities and awarded it.
Whether the claimant was entitled to service pay
Refused because the claimant was registered with NSSF and statutory dues were paid
The claimant's pay slip showed he was registered with NSSF and statutory dues were paid. Under the law, an employee who is a member of NSSF is not entitled to service pay, hence the claim failed.
Whether the claimant proved overtime claims
Dismissed for failure of proof on a balance of probabilities
The claimant did not adduce precise evidence of the specific days he worked overtime and was not paid. The respondent's witness testified that the claimant worked 8.30 am to 5.30 pm and customers closed at 5 pm, so no night work occurred. The claim therefore was not proved.
Legal principles established
#- Permission once granted does not entitle an employee to extend the days granted without seeking extension from the employer
- An employer may dismiss an employee who absents himself from work without leave or other lawful cause under Section 44 of the Employment Act
- Summary dismissal without payment in lieu of notice may be converted to normal termination where it amounts to gross punishment
Court orders
#- 1.One month salary in lieu of notice Kshs. 10,107.
- 2.Payment in lieu of leave days not taken for three years Kshs. 30,321.
- 3.Total award Kshs. 40,428.
- 4.Interest at court rates from date of filing suit till payment in full.
- 5.Costs of the suit to the claimant.
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, 2007 (unfair termination and terminal benefits claims)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aggrey Kimiya Mukiza v Roy Parcels Services Limited [2019] KEELRC 814 (KLR)", Case Analysis (2019). Cause No 99 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/814/eng@2019-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.