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ELRCPartially AllowedELRC No. 522 of 2014· [2019] KEELRC 1240 (KLR)

Elkana Kwendo Kiboi v Karsan Ramji & Sons Limited [2019] KEELRC 1240 (KLR)

Employment and Labour Relations Court
1 July 2019
HWHellen S. Wasilwa
1,392 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer that claims a worker resigned must prove it in court, or it will be found to have unfairly terminated the employee and ordered to pay compensation.

What this practically means

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Executive summary

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The Claimant, employed as a stone crusher and later general worker at the Respondent's quarry, claimed damages for wrongful dismissal and unpaid terminal dues following termination on 30th September/November 2013. He claimed salary in lieu of notice, house allowance for 16 years, service pay and leave allowance, totalling Kshs. 517,200, with interest and costs. The Respondent admitted employment but contended the Claimant was engaged on 20th April 2007, was injured in a January 2013 quarry explosion, resumed duty with deteriorated performance, and orally resigned to access his NSSF dues, whereupon it issued a termination letter at his request on 14th November 2013; it asserted all dues were paid. The Respondent closed its case without calling any witness. The Claimant testified he never received an appointment letter, paid his own hospital bills, denied resigning, and denied signing the termination letter. The court held that since the Respondent adduced no evidence, the Claimant's case remained undisturbed and the alleged resignation was unproved; the termination was therefore unfair. Awarding remedies, the court granted one month's salary in lieu of notice (Kshs. 9,600), house allowance at 15% of salary for 16 years (Kshs. 276,480), one year's leave allowance (Kshs. 8,400) and six months' salary as compensation for unlawful termination (Kshs. 57,600), totalling Kshs. 352,080, plus costs and interest at court rates from the date of judgment. The full service pay figure claimed was not awarded, and the award fell short of the sum claimed.

Key legal issues

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01

Whether the termination was unfair and unlawful

Holding

The court found the Claimant was terminated unfairly as pleaded, since the Respondent's assertion of resignation was unsupported by evidence and the Claimant's case was uncontroverted

Reasoning

The Respondent closed its case without calling any witness, leaving the Claimant's evidence unchallenged. The Respondent's defence that the Claimant orally resigned to access NSSF dues was unsupported. The termination letter dated 14th November 2013 was not signed by the Claimant, and no reason for termination was shown, contrary to Sections 41 and 45 of the Employment Act as submitted.

p. 3
02

What remedies flow from the unfair termination

Holding

The court awarded one month's salary in lieu of notice, house allowance at 15% of basic salary for 16 years, one year's leave allowance, and six months' salary as compensation for unlawful termination, totaling Kshs. 352,080 with costs and interest

Reasoning

Having found the termination unfair, the court exercised its remedial discretion under the Employment Act. It awarded notice pay, house allowance calculated at 15% of the monthly salary of Kshs. 9,600 over the 16-year employment period, leave allowance as prayed, and the maximum reasonable compensation figure it deemed appropriate rather than the full claim of Kshs. 517,200.

p. 3

Legal principles established

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  • Where a respondent fails to call any evidence, the claimant's uncontroverted case remains undisturbed and stands proved
  • Alleged voluntary resignation must be proved by the party asserting it; a mere contention without evidence fails

Court orders

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  1. 1.Payment of 1 month salary in lieu of notice of Kshs. 9,600
  2. 2.Payment of house allowance at 15% of Kshs. 9,600 x 12 x 16 years, amounting to Kshs. 276,480
  3. 3.Payment of leave for 1 year of Kshs. 8,400
  4. 4.Payment of 6 months salary as compensation for unlawful termination, amounting to Kshs. 57,600
  5. 5.Total award of Kshs. 352,080
  6. 6.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 45(1) and (2)
  • Employment ActSection 41
  • Employment ActSection 10(7)
  • Regulation of Wages and Conditions of Employment ActRegulation 17(1)

Cases cited (4)

  • Walter Ogal Anuro Vs Teachers Service Commission
    (2013) eKLR
  • Gilbert Kasumali Kithi Vs Nyali Beach Hotel Resort
    (2015)
  • Katiwa Kanguli Vs Bamburi Cement Limited
    (2015) eKLR
  • Coastal Bottlers Limited Vs Kimathi Mithika
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (employment dispute)

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, "Elkana Kwendo Kiboi v Karsan Ramji & Sons Limited [2019] KEELRC 1240 (KLR)", Case Analysis (2019). ELRC No. 522 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1240/eng@2019-07-01

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