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ELRCPartially AllowedELRC Claim (transferred from HCCC 378 of 2005)· [2019] KEELRC 949 (KLR)

William Kimani Richo v Standard Limited [2019] KEELRC 949 (KLR)

Employment and Labour Relations Court
2 August 2019
MOMAUREEN ONYANGO
1,842 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 confirmed a driver's dismissal for sick leave absence was unlawful, but awarded only modest notice pay and medical refunds, not millions claimed.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 22 February 1995 as a driver, was summarily dismissed on 21 July 1999 allegedly for absconding duty for over 40 days. He sued, initially at the High Court (HCCC 378 of 2005), and the matter was transferred to this court by direction of Mutava J. He sought special damages of Kshs.7,000,615 including loss of earnings to retirement, leave and house allowances, medical refunds, notice pay, traffic case expenses, a penalty for being forced to work on leave days, overtime, and general damages for breach of contract. The Respondent defended the dismissal as lawful and contended the Claimant was entitled only to notice pay. The court found that the pay slips showing overtime in May and June disproved the alleged absenteeism, and that the Claimant's absence following his accident, once explained with medical documents, constituted a valid reason that contractually barred summary dismissal under clause 12(d). The dismissal was therefore unlawful. However, most reliefs failed: future earnings were untenable because the contract contained a termination clause and no payments accrue after termination; leave, house allowance and other heads were unproved or already paid; traffic case expenses were barred as arising from the Claimant's criminal responsibility; and general damages were unavailable under the repealed Employment Act, Cap 226. Judgment was entered for the Claimant for pay in lieu of notice (Kshs.6,980) and a Kshs.10,000 medical refund, totalling Kshs.16,890, with costs to the Claimant and interest from the date of judgment.

Key legal issues

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01

Whether the summary dismissal for absenteeism was lawful

Holding

The dismissal was unlawful because the absence was due to illness/accident and was justified

Reasoning

The respondent alleged over 40 days' absence but produced no proof of the specific days. Pay slips showing overtime in May and June contradicted the allegation. The respondent's own memo acknowledged the accident, and the claimant explained his absence by illness supported by authentic medical documents. Once a valid reason for absence was communicated, clause 12(d) could not support summary dismissal.

p. 3
02

Whether the claimant was entitled to future earnings to retirement age

Holding

No; the contract contained a termination clause and no payments are due after termination

Reasoning

The court adopted the position in Francis N. Gachuri v Energy Regulatory Commission that even permanent and pensionable employment can be terminated and damages are limited to compensation for unprocedural termination without substantive reason. Future emoluments are not recoverable as no payments accrue after the date of termination.

p. 3
03

Whether general damages for breach of employment contract were available

Holding

Not available under the repealed Employment Act, Cap 226

Reasoning

Relying on Unilever Tea Kenya Limited v John Kememia Gitau and Directline Assurance, the general rule under Cap 226 was that courts could not award general damages for breach of contract or employment terms, so that head of claim failed.

p. 3

Legal principles established

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  • No general damages are awardable for breach of an employment contract governed by the repealed Employment Act, Cap 226
  • No employment is permanent; a permanent and pensionable contract may still be terminated, and damages are limited to unprocedural or unsubstantiated termination
  • Absence due to illness or accident, once communicated to the employer, is a lawful excuse and does not justify summary dismissal

Court orders

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  1. 1.Pay in lieu of notice of Kshs.6,980
  2. 2.Refund of medical expenses of Kshs.10,000
  3. 3.All other prayers dismissed
  4. 4.Respondent to pay claimant's costs
  5. 5.Interest to accrue from date of judgment

Authorities

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Legislation

  • Employment Act, Cap 226 (Repealed)Section 17(a)

Cases cited (4)

  • Githinji vs. Mumias Sugar
    [1995-1998] 1 EALR 68
  • Francis N. Gachuri -vs- Energy Regulatory Commission
    [2013] eKLR
  • Unilever Tea Kenya Limited v John Kememia Gitau
    [2017] eKLR
  • Directline Assurance Company Ltd Vs Jeremiah Wachira Ichaura
    CA No. 68 of 2014
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction following transfer direction by Mutava J. on 26 March 2012

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, "William Kimani Richo v Standard Limited [2019] KEELRC 949 (KLR)", Case Analysis (2019). ELRC Claim (transferred from HCCC 378 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/949/eng@2019-08-02

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