Julia Wairimu Ndiritu v Forward Mobiles (K) Ltd [2019] KEELRC 1194 (KLR)
The bottom line
#A Kenyan court ruled that a company cannot avoid paying employees' dues just because a director died, awarding a former M-pesa agent notice pay and compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was unlawful and unfair
The termination without notice was unlawful; the Claimant lost her employment suddenly on account of the demise of a director, and the Respondent was still bound to secure employees' rights
The Claimant was cleared from work without notice and her dues were unpaid. The Respondent attributed the closure to financial difficulties arising from a succession cause, but the court held the employer could not evade its obligations to employees due to a director's death. The business was in fact sold for Kshs. 22 million. Awarded notice pay plus six months' compensation.
Whether Section 41 of the Employment Act (notice and hearing) applied
Section 41 was not engaged because the dismissal was not for misconduct or poor performance; entitlement was to notice pay for termination without notice
The authority relied on by the Claimant concerning Section 41 was held inapplicable since she was not accused of misconduct. The relevant remedy was notice pay for termination without notice.
Leave and overtime claims
Both claims failed for want of evidence; the Claimant did not prove she was denied leave or that she worked overtime
The Claimant testified she obtained permission to attend to her child in boarding school, and the court doubted she was denied annual leave. On overtime, no sufficient evidence was adduced. Burden of proof not discharged.
Legal principles established
#- An employer cannot escape liability for employees' rights merely because a director has died and succession proceedings are pending
- An employee terminated without notice is entitled to recover notice pay
Court orders
#- 1.Judgment for the Claimant against the Respondent for Kshs. 7,000/- as notice pay
- 2.Kshs. 42,000/- being 6 months' salary as compensation for unfair termination
- 3.Costs of the suit capped at Kshs. 20,000/-
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination and employment claims (Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julia Wairimu Ndiritu v Forward Mobiles (K) Ltd [2019] KEELRC 1194 (KLR)", Case Analysis (2019). Cause No 237 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1194/eng@2019-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.