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ELRCAllowedCause Number 1623 of 2015· [2019] KEELRC 1493 (KLR)

Kioki Musyoki & another v Kibe Muigai Holdings Limited [2019] KEELRC 1493 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
17 May 2019
ANAbuodha J. N.
403 words in judgment
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The bottom line

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A Kenyan court awarded two hotel employees over Kshs 7 million because their employer could not prove it lawfully terminated them.

What this practically means

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Executive summary

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The two claimants, employed by the respondent as General Manager and Head House Keeper respectively to help set up the operations of Emerald Hotel, claimed unpaid salaries and allowances. The 1st claimant's salary of Kshs 160,000 was to be reviewed to Kshs 250,000 upon opening of the hotel, while the 2nd claimant's salary of Kshs 70,000 was to be reviewed to Kshs 109,000 plus a housing allowance of Kshs 47,000. The respondent allegedly failed to pay, citing cash flow problems, and although it obtained a loan from Equity Bank (K) Limited in October 2012, it reneged on its promise to clear the arrears. Instead, under the guise of closure for renovation, it terminated the claimants' contracts. The respondent was served but neither entered appearance nor filed a defence; the cause was certified as undefended and proceeded for formal proof hearing on 26th April 2018. Abuodha J. held that the burden of proving a lawful termination rests on the employer, and the respondent having failed to refute the claim, judgment was entered: Kshs 4,960,000 for the 1st claimant and Kshs 2,170,000 (printed as 2,170,00) for the 2nd claimant, each comprising one month's salary in lieu of notice, salary arrears and six months' salary as compensation for unlawful termination. Costs were awarded to the claimants, and the award was made subject to taxes and statutory deductions. Judgment was dated and delivered at Nairobi on 17th May 2019.

Key legal issues

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01

Unlawful termination of employment and burden of proof

Holding

In an undefended claim, the employer having adduced no evidence to refute the claim, termination was unlawful and each claimant was awarded six months' salary as compensation plus notice pay and salary arrears

Reasoning

The court noted the claim was undefended; the respondent neither entered appearance nor filed a defence. Applying the principle that the employer bears the burden of proving a lawful termination, and the respondent having failed to refute the claimants' claim, judgment was entered for the amounts claimed, including one month's salary in lieu of notice, salary arrears and six months' salary as compensation for unlawful termination.

p. 1

Legal principles established

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  • The burden of proving that a lawful termination of employment has occurred rests upon the employer

Court orders

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  1. 1.Judgment against the respondent for the 1st claimant of Kshs 4,960,000 being one month's salary in lieu of notice (Kshs 160,000), salary arrears (Kshs 3,840,000) and six months' salary compensation for unlawful termination (Kshs 960,000)
  2. 2.Judgment against the respondent for the 2nd claimant of Kshs 2,170,000 being one month's salary in lieu of notice (Kshs 70,000), salary arrears (Kshs 1,680,000) and six months' salary compensation for unlawful termination (Kshs 420,000)
  3. 3.Costs to the claimants
  4. 4.The award shall be subject to taxes and statutory deductions
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act in respect of a claim for unpaid salary and unlawful termination of employment

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, "Kioki Musyoki & another v Kibe Muigai Holdings Limited [2019] KEELRC 1493 (KLR)", Case Analysis (2019). Cause Number 1623 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1493/eng@2019-05-17

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