Samuel Nyasimi v Merica Hotel [2019] KEELRC 1070 (KLR)
The bottom line
#A Kenyan court upheld a hotel worker's summary dismissal for staying away without explanation, but awarded his untaken leave pay.
What this practically means
#Executive summary
#Key legal issues
#Whether the summary dismissal of the claimant was unfair
The summary dismissal was justified and lawful. The claimant absented himself from work from 2nd January 2013 without justifiable cause, failed to respond to the show cause notice, and failed to attend the disciplinary hearing, engaging sections 44(4)(a), (f) and (g) of the Employment Act.
The court held that criminal proceedings and internal disciplinary processes are distinct; the employer could proceed disciplinarily. The claimant's whereabouts were unknown from 2nd January 2013, he did not respond to the show cause notice dated 21st February 2013, and did not attend the hearing on 4th March 2013. Absence without lawful cause is a justified ground for summary dismissal under section 44(4)(a), and his prolonged custody triggered section 44(4)(f) and (g).
Whether notice pay and compensation were due
Not due in a case of justified summary dismissal.
Since the court found the summary dismissal justified, the remedies that flow from unfair termination - notice pay and compensation - do not arise. The claimant's defence that the employer knew he was in custody did not excuse his failure to report his whereabouts or respond to the disciplinary process.
Whether the claimant was entitled to house allowance
The claim failed because the contract provided a gross consolidated salary of Ksh.15,000.00, above the minimum wage for a security assistant.
The court examined clause 3 of the contract which provided a gross consolidated salary plus a share of service charge. Since the wage was consolidated and above the statutory minimum for the position, the respondent met the requisite threshold and no house allowance was payable.
Whether overtime pay was due
The overtime claim of Ksh.1,520,620.00 failed; the work records produced did not reasonably support 12- or 16-hour workdays.
The court analysed the worksheets for July 2010 and found the recorded hours internally inconsistent - a shift from 1802 hours to 00 hours could not amount to 12 hours. The account given was not reasonable, and the records did not aid the overtime claims, which were accordingly lost.
Whether untaken annual leave days were payable
Ten days of untaken annual leave were due, assessed at Ksh.11,666.70, based on the approved leave records showing 68 days taken out of 78 due.
From the leave application forms produced, the claimant had taken 68 approved leave days out of 78 accrued under the contract providing for 26 days of leave annually. The balance of 10 days was quantified at Ksh.11,666.70 and awarded.
Legal principles established
#- Criminal proceedings against an employee do not bar concurrent internal disciplinary proceedings or a challenge to dismissal before the outcome of criminal proceedings.
- In wrongful or unfair dismissal cases, the court examines both the validity and justifiability of the reasons for termination and procedural fairness.
- Absence from work without leave or lawful cause, and arrest for a cognizable offence without release within fourteen days, are grounds for summary dismissal under section 44(4) of the Employment Act.
Court orders
#- 1.Annual leave pay assessed at Ksh.11,666.70 awarded to the claimant for 10 days of untaken annual leave
- 2.The claimant to be issued with his Certificate of Service in accordance with section 51 of the Employment Act, 2007
- 3.All other claims (notice pay, house allowance, overtime, compensation) dismissed as without merit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination and employment claims)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mirk General Agencies Limited v Atieli (Appeal E353 of 2024) [2025] KEELRC 2633 (KLR)[2025] KEELRC 2633 (KLR)26 Sept 2025
Cite this brief
#Cite this brief
Caselaw, "Samuel Nyasimi v Merica Hotel [2019] KEELRC 1070 (KLR)", Case Analysis (2019). Cause No. 24 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1070/eng@2019-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.