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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 2085 (KLR)

Munyiva Joseph v China Road And Bridge Corporation (K) [2019] KEELRC 2085 (KLR)

Employment and Labour Relations Court
13 March 2019
NMNzioki wa Makau
621 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that dismissing an employee by text message without notice or reasons was unlawful, but awarded only three months' compensation instead of twelve.

What this practically means

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Executive summary

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The Claimant sued the Respondent for unlawful dismissal arising from her employment as a cleaner from 1st February 2015 to 13th November 2016. She alleged she was bitten by the Respondent's dog on 1st October 2016, paid her own medical expenses after the Respondent declined to settle them, and then received a text message on 13th November 2016 terminating her services without notice or reasons. She sought one month's salary in lieu of notice, gratuity for one completed year, unpaid leave dues, 12 months' salary as compensation for unlawful dismissal, costs and interest. The Respondent entered appearance but filed no defence, so the suit proceeded as an undefended cause and the Claimant testified and filed submissions invoking Sections 43 and 45 of the Employment Act and authorities on unlawful termination. The court found the dismissal unlawful, holding that she was not given notice or reasons and that she had proved her case on a balance of probability. However, it declined to award the full 12 months' compensation sought, holding the circumstances - employment of slightly over one year - did not warrant so high an award. Judgment was entered for the Claimant for Kshs. 17,705/- as notice and Kshs. 53,115/- as compensation for three months, with costs of the suit and interest on the awarded sums at court rates from the date of judgment until payment in full. The gratuity and leave dues claims were not included in the final orders.

Key legal issues

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01

Lawfulness of termination without notice or reasons

Holding

The dismissal was unlawful as no notice or reasons were given

Reasoning

The Claimant was dismissed by text message on 13th November 2016 after a dog-bite incident, without notice or reasons. Sections 43 and 45 of the Employment Act require valid reasons and a fair procedure for termination. Having worked slightly over one year and proved her case on a balance of probability, she was entitled to notice pay and compensation under Section 49, though not the full 12 months.

p. 2
02

Quantum of compensation under Section 49 of the Employment Act

Holding

Three months' salary as compensation plus one month's notice pay, not the 12 months sought

Reasoning

Although counsel cited Absalom Ajusa Magomere v Kenya Nut Company Limited where 12 months' compensation was awarded, the court found the circumstances of this case - slightly over one year of service - did not warrant the maximum award and settled on 3 months' compensation.

p. 2

Legal principles established

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  • Where an employee is dismissed without notice or reasons, the dismissal is unlawful and compensation under Section 49 of the Employment Act need not extend to the maximum 12 months where circumstances do not warrant it
  • A claimant in an employment dispute proves her case on a balance of probability

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for Kshs. 17,705/- as notice
  2. 2.Kshs. 53,115/- as compensation for 3 months
  3. 3.Costs of the suit to the Claimant
  4. 4.Interest on the sums in (i) and (ii) at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 49

Cases cited (3)

  • Daniel Kiplagat Kipkebut v SMEP Deposit Taking Micro Finance Ltd
    [2016] eKLR
  • Mary Mutanu Mwendwa v Ayuda Ninos De Africa-Kenya (Anidan K)
    [2013] eKLR
  • Absalom Ajusa Magomere v Kenya Nut Company Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 43, 45 and 49 invoked)

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, "Munyiva Joseph v China Road And Bridge Corporation (K) [2019] KEELRC 2085 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2085/eng@2019-03-13

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