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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 99 of 2016· [2019] KEELRC 814 (KLR)

Aggrey Kimiya Mukiza v Roy Parcels Services Limited [2019] KEELRC 814 (KLR)

Employment and Labour Relations Court
19 September 2019
1,592 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 that overstaying approved leave justified dismissal, but the employer still had to pay one month's notice and accrued leave.

What this practically means

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Executive summary

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The claimant, employed by the respondent on 1st February 2011 as a loader, was summarily dismissed on 5th February 2016 for absence from duty. He sought a declaration that the termination was unlawful and unfair, plus notice pay, unpaid leave for three years, service pay and overtime totalling over Kshs. 360,000. His evidence was that he had obtained permission from the Human Resource Manager and his supervisor to take four days' leave from 24th December 2015 to obtain a birth certificate for his child, but overstayed until 5th January 2016. The respondent's Human Resource Manager testified that the claimant never completed a leave form as directed, that the company had only skeleton staff during the holiday season, and produced warning letters for loss of customer goods and for exceeding leave by four days. The court framed two issues: whether the summary dismissal was for a valid reason and followed fair procedure, and whether the reliefs were due. It held that the claimant's absence during the Christmas holidays and for the purpose of obtaining a birth certificate were mitigating factors, but his extension of leave without permission justified termination. However, summary dismissal without notice pay was gross punishment and was converted to a normal termination with one month's notice pay of Kshs. 10,107. The claim for three years' unpaid leave (Kshs. 30,321) was proved and awarded. Service pay was refused as the claimant was an NSSF member, and the overtime claim failed for want of proof. Judgment was entered for Kshs. 40,428 with interest and costs.

Key legal issues

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01

Whether the summary dismissal was for a valid reason and following fair procedure

Holding

The dismissal was justified because the claimant extended his leave without permission, but summary dismissal without notice pay was converted to normal termination

Reasoning

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.

p. 2
02

Whether the claimant was entitled to unpaid leave for three years

Holding

Awarded; the claimant proved he was only granted leave in 2015 and the respondent led no contrary evidence

Reasoning

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.

p. 2
03

Whether the claimant was entitled to service pay

Holding

Refused because the claimant was registered with NSSF and statutory dues were paid

Reasoning

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.

p. 2
04

Whether the claimant proved overtime claims

Holding

Dismissed for failure of proof on a balance of probabilities

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.One month salary in lieu of notice Kshs. 10,107.
  2. 2.Payment in lieu of leave days not taken for three years Kshs. 30,321.
  3. 3.Total award Kshs. 40,428.
  4. 4.Interest at court rates from date of filing suit till payment in full.
  5. 5.Costs of the suit to the claimant.

Authorities

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Legislation

  • Employment ActSection 44
Jurisdiction invoked
Original jurisdiction under the Employment Act, 2007 (unfair termination and terminal benefits claims)

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, "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.