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ELRCPartially AllowedMemorandum of Claim dated 2nd September 2014 (ELRC, Nairobi)· [2019] KEELRC 1529 (KLR)

Titus Mutiso Mbindyo v Motor Boutique Limited [2019] KEELRC 1529 (KLR)

Employment and Labour Relations Court
27 May 2019
MOMAUREEN ONYANGO
1,317 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee's dismissal unfair because the employer couldn't prove a disciplinary hearing happened, awarding notice pay plus 10 months' salary.

What this practically means

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Executive summary

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The claimant sued for unlawful and unfair summary dismissal on 5th July 2013 after roughly five years of employment at a last salary of Kshs.24,982, seeking declarations, notice pay, 12 months' compensation totalling Kshs.324,766, interest and costs. The respondent denied the claim, pleading that the claimant was implicated in the disappearance of company goods, brought himself within Section 44 of the Employment Act, but that summary dismissal was reduced to normal termination with dues remitted to a SACCO towards a loan. The claimant testified unopposed on 11th October 2018 after the respondent failed to attend court; the respondent's later application to set aside the proceedings was itself dismissed for non-attendance. The court found no proof of a disciplinary hearing - no invitation letter or minutes - and no denial of non-disclosure of the alleged lost goods or of failure to issue termination letters. It declared the termination unfair, found no proof of remittance of terminal dues to any SACCO, and awarded one month's notice pay (Kshs.24,983) and compensation of 10 months' salary (Kshs.249,820), considering length of service, the casual manner of termination and the total dues of Kshs.274,802. The respondent was ordered to pay the claimant's costs, with interest on the decretal sum at court rates from the date of judgment.

Key legal issues

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01

Whether termination was fair under Sections 41 and 43 of the Employment Act

Holding

Termination was unfair - no proof of hearing or disclosed reasons

Reasoning

The respondent pleaded that a meeting was held on 5th July 2013, but produced no invitation letter or minutes. It did not controvert the claimant's testimony that no property was identified, no investigations were done, no report to police and no termination letters issued. The court had no reason to disbelieve the claimant and declared the termination unfair.

p. 2
02

Whether terminal dues were paid via remittance to a SACCO

Holding

No proof of remittance

Reasoning

The respondent pleaded that dues were remitted to a SACCO to recover a loan, but adduced no evidence of the loan, the amount owed, the identity of the SACCO, or any remittance. The claim therefore stood unproven and the claimant was treated as unpaid of terminal dues.

p. 2
03

Quantum of remedies

Holding

One month's notice pay and 10 months' compensation awarded

Reasoning

The court exercised discretion under Section 49, considering the claimant's length of service since 2008, the casual manner of termination, non-payment of terminal dues, and the total sum due of Kshs.274,802, awarding notice of Kshs.24,983 and compensation of Kshs.249,820 rather than the 12 months sought.

p. 2

Legal principles established

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  • An employer alleging a disciplinary hearing must prove it by evidence such as an invitation letter or minutes; uncontroverted testimony of the employee will be believed.
  • An employee unfairly terminated is entitled to notice pay and compensation under the Employment Act.

Court orders

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  1. 1.Declaration that the termination of the claimant's employment was unfair
  2. 2.One month's salary in lieu of notice in the sum of Kshs.24,983
  3. 3.Compensation equivalent to 10 months' salary in the sum of Kshs.249,820
  4. 4.Respondent to pay the claimant's costs of the suit
  5. 5.Decretal sum to attract interest at court rates from date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(1) and (3)
  • Employment Act, 2007Section 35
  • Employment Act, 2007Section 49

Cases cited (1)

  • William Opetu –VS- Mukesh Patel
Jurisdiction invoked
Employment Act, 2007 (Sections 35, 41, 43, 44, 49) - original employment and labour relations jurisdiction

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, "Titus Mutiso Mbindyo v Motor Boutique Limited [2019] KEELRC 1529 (KLR)", Case Analysis (2019). Memorandum of Claim dated 2nd September 2014 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1529/eng@2019-05-27

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