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ELRCPartially AllowedNot stated in the judgment as provided· [2019] KEELRC 2175 (KLR)

Charles Nderitu Njoya & another v Mutheka Farmers Co-operative Limited [2019] KEELRC 2175 (KLR)

Employment and Labour Relations Court
26 February 2019
NMNzioki wa Makau
1,249 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that stopping employees' pay and replacing them amounts to unfair constructive dismissal, awarding each worker six months' salary.

What this practically means

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Executive summary

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Two claimants, formerly employed as watchmen by the Respondent at a coffee factory earning an all-inclusive monthly wage, sued for unlawful, unfair and wrongful dismissal. They alleged that after coffee was stolen on 13th July 2012 they were told to stop working on 29th July 2012, were replaced by Securicor officers, and were never issued dismissal or salary-suspension letters. They sought a declaration of wrongful dismissal, 12 months' gross salary as compensation, terminal dues, costs and interest. The Respondent denied dismissing them, contending it suspended their salaries indefinitely after the theft, that the claimants were criminally charged (and later acquitted under Section 210 of the Criminal Procedure Code), and that they deserted duty from 21st July 2012. The court framed two issues: whether the claimants were dismissed unlawfully, and their entitlement to remedies. Holding that no employee can be expected to work without pay, the court found the indefinite salary suspension and replacement of the claimants amounted to constructive dismissal. Relying on Section 41 of the Employment Act and applied authorities, it held the termination was procedurally unfair as the claimants received no notice or hearing. The court granted the declaration, ordered payment of terminal benefits, and awarded each claimant six months' gross salary as compensation rather than the twelve months sought, plus costs of the suit. Judgment was delivered at Nyeri on 26th February 2019 by Nzioki wa Makau J.

Key legal issues

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01

Whether the Claimants were dismissed and whether the dismissal was unlawful and unfair

Holding

The indefinite suspension of salaries coupled with replacement by Securicor amounted to constructive dismissal; the dismissal was unfair because no notice or hearing was given

Reasoning

The Respondent contended it merely suspended salaries indefinitely and that the Claimants absconded, but the Claimants testified they were told to stop working and were replaced by Securicor officers. The court found no employee can be expected to work without pay and that the Respondent's conduct amounted to constructive dismissal. The Claimants were neither issued notice nor subjected to a disciplinary hearing as required by Sections 41 and 44 of the Employment Act, rendering the termination procedurally unfair.

p. 2
02

Whether the Claimants are entitled to the remedies sought

Holding

Declaration of wrongful and unfair dismissal granted, terminal benefits ordered, and compensation of 6 months' gross salary awarded instead of the 12 months claimed

Reasoning

Having found the dismissal wrongful and unfair, the court granted the declaration and terminal benefits. On compensation, the court discretionarily awarded six months' gross salary per Claimant, taking into account the unfair manner of termination, rather than the twelve months' salary the Claimants had pleaded. Costs of the suit were also awarded to the Claimants.

p. 2

Legal principles established

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  • Where an employer indefinitely suspends an employee's salary and replaces them, the actions amount to constructive dismissal
  • Summary dismissal requires compliance with the procedural requirements of Section 41 of the Employment Act, including notice and a hearing

Court orders

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  1. 1.Declaration that the Claimants' dismissal was wrongful and unfair
  2. 2.Order that the Claimants be paid their respective terminal benefits
  3. 3.Compensation of 6 months gross salary to each Claimant
  4. 4.Costs of the suit to the Claimants

Authorities

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Legislation

  • Employment ActSection 44
  • Employment ActSection 41
  • Employment ActSection 41(2)
  • Criminal Procedure CodeSection 210

Cases cited (2)

  • Titus Musau Ndivau & Another v Waridi Limited
    [2012] eKLR
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act); no specific provision 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, "Charles Nderitu Njoya & another v Mutheka Farmers Co-operative Limited [2019] KEELRC 2175 (KLR)", Case Analysis (2019). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2175/eng@2019-02-26

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