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ELRCPartially AllowedCause Number 780 of 2012· [2019] KEELRC 1371 (KLR)

Ruth Nzilani Kyalo v Tikoo and Company Limited [2019] KEELRC 1371 (KLR)

Employment and Labour Relations Court of Kenya
31 May 2019
ANAbuodha J NMOMaureen Onyango
482 words in judgment
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The bottom line

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A Kenyan court awarded a tailor notice pay and unused leave for her 2006 dismissal but refused unfair termination damages because the 2007 Employment Act does not apply retroactively.

What this practically means

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Executive summary

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The claimant, employed by the respondent as a tailor on 29th February 2000 at a final salary of Kshs 6,095, alleged that on 3rd June 2006 she was ordered to vacate the premises without reasons, notice or payment for the month worked, and that her purported redundancy lacked the procedures of the Employment Act. The respondent's witness, Mr Ronald Musungu, asserted that in 2006 there were several theft cases reported to the police and labour office, and that the claimant deserted work during that period. The court, following Lady Justice Maureen Onyango's decision in Eunice Sti v Tikoo & Company (Cause No 785 of 2012), held that the claimant was not entitled to damages for unfair termination because that remedy was introduced by the Employment Act 2007, and the cause of action accrued in 2006 before its enactment. The court noted that where termination is alleged to be on account of desertion, the employer must show reasonable efforts to contact the employee and an opportunity to show cause. Under the repealed Employment Act, the measure of damages for wrongful termination was the money equivalent of the notice period, and the claimant was awarded one month's salary in lieu of notice (Kshs 6,095). As the respondent did not deny the claimant's entitlement to leave and produced no evidence she took leave, the court awarded leave for 6 years (Kshs 36,570), a total of Kshs 42,665, plus costs of the suit. The judgment was authored by Abuodha J N and delivered by Principal Judge Maureen Onyango on 31st May 2019.

Key legal issues

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01

Retrospective application of the Employment Act 2007

Holding

The claimant is not entitled to damages for unfair termination as the cause of action accrued in 2006 before enactment of the 2007 Act

Reasoning

The court adopted the reasoning in Eunice Sti v Tikoo & Company, holding that the award for unfair termination was a creation of the Employment Act 2007 and cannot apply to a 2006 termination. Only remedies available under the repealed Employment Act could be awarded.

p. 1
02

Measure of damages for wrongful termination under the repealed Employment Act

Holding

The claimant is entitled to one month's salary in lieu of notice

Reasoning

Under the repealed Employment Act, the measure of damages for wrongful termination was the money equivalent of the notice period that would have applied had employment been terminated normally, here one month's salary of Kshs 6,095.

p. 1
03

Entitlement to leave pay

Holding

The claimant is awarded leave for 6 years

Reasoning

The respondent did not deny the claimant's entitlement to leave for the period worked and produced no evidence that she took leave. Leave for 6 years was computed at Kshs 36,570.

p. 1

Legal principles established

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  • The damages award for unfair termination introduced by the Employment Act 2007 does not apply to terminations occurring before its enactment
  • In a termination on account of desertion, the employer must show reasonable efforts were made to contact the employee and that the employee was called upon to show cause
  • Under the repealed Employment Act, damages for wrongful termination were the money equivalent of the required notice period

Court orders

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  1. 1.Award of one month's salary in lieu of notice (Kshs 6,095)
  2. 2.Award of leave for 6 years (Kshs 36,570)
  3. 3.Total award of Kshs 42,665
  4. 4.Claimant to have costs of the suit

Authorities

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Legislation

  • Employment Act 2007unfair termination award provisions
  • Employment Act (repealed)measure of damages for wrongful termination

Cases cited (1)

  • Eunice Sti Vs Tikoo & Company
    Cause No 785 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (cause of action governed by the repealed Employment Act)

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, "Ruth Nzilani Kyalo v Tikoo and Company Limited [2019] KEELRC 1371 (KLR)", Case Analysis (2019). Cause Number 780 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1371/eng@2019-05-31

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