Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 2091 of 2014· [2019] KEELRC 2280 (KLR)

Nancy Muthoga v Chandarana Supermarkets [2019] KEELRC 2280 (KLR)

Employment and Labour Relations Court
15 February 2019
3,601 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer who dismisses an employee for absconding without first holding a disciplinary hearing loses, even where the employee also failed to report illness.

What this practically means

#

Executive summary

#
The Claimant, employed as Branches Co-ordinator from February 2007, claimed unfair termination after the Respondent dismissed her on 8 January 2013 for absconding duty for 60 days. She averred she was on approved leave from October 2012, was admitted at Nairobi West Hospital, and held sick-off sheets through December 2012, but sent no direct communication to the employer until reporting on 8 January 2013. The Respondent maintained she absconded without explanation and was summarily dismissed after a written explanation and disciplinary hearing. The court framed three issues. First, the Claimant's text messages informing the employer of her illness were held inadmissible for failure to satisfy Sections 106B(2) and (4) of the Evidence Act, the court following Muchelule J in William Odhiambo Oduol v IEBC. Second, although the Claimant failed to notify the employer of her incapacity as required by Section 30(1) of the Employment Act and Clause 7(b) of her contract, the Respondent never invited her to a disciplinary hearing before summary dismissal under Section 44(4)(a); following Ndolo J in Kennedy Nyangucha Omanga v Bob Morgan Services Limited, the termination was unfair for want of fair procedure. Third, on relief, the court awarded one month's notice pay (Kshs.70,560), five months' salary as compensation (Kshs.352,800) given the medical grounds and length of service, and admitted terminal dues of Kshs.278,399. Service pay was refused as NSSF deductions appeared on the payslip and no NSSF statement proved non-remittance; the claim for eight days worked in January 2013 failed. A Certificate of Service and costs of the suit were awarded to the Claimant.

Key legal issues

#
01

Admissibility of text messages

Holding

Text messages inadmissible for failure to satisfy Section 106B(2) and (4) of the Evidence Act

Reasoning

The authenticity of the text messages could not be ascertained as it was unclear which numbers belonged to the sender and recipient. Printed text messages emanate from an electronic device and must comply with Sections 106B(1) and (2) of the Evidence Act, including a certificate signed by a person in a responsible position. The Claimant failed to meet these conditions, so the messages were excluded.

p. 3
02

Whether dismissal for absence due to illness was wrongful/unfair

Holding

Termination procedurally unfair despite employee's failure to notify, because no disciplinary hearing was held

Reasoning

The employee failed to notify the employer of her illness or deliver sick sheets as required by Section 30(1) of the Employment Act and Clause 7(b) of her contract. However, the Respondent never invited her to a disciplinary hearing before summary dismissal for absconding duty, and the minutes of the alleged hearing were not produced, rendering the termination unfair for want of fair procedure.

p. 5
03

Reliefs

Holding

One month notice pay, 5 months' compensation, terminal dues, certificate of service and costs awarded; service pay and January 2013 claim refused

Reasoning

The Respondent did not dispute notice pay of Kshs.70,560. Considering the termination was on medical grounds and length of service, 5 months' salary (Kshs.352,800) was awarded as compensation, plus admitted terminal dues of Kshs.278,399. Service pay failed for lack of proof of non-remittance of NSSF; the claim for 8 days in January 2013 failed as she reported on the day of termination.

p. 5

Legal principles established

#
  • An employer must invite an employee to a disciplinary hearing before summary dismissal for absconding duty; failure renders termination procedurally unfair
  • An employee claiming sick leave must notify the employer and deliver a medical certificate of incapacity to work
  • Electronic evidence such as text messages must satisfy the conditions in Section 106B of the Evidence Act to be admissible

Court orders

#
  1. 1.One month's salary in lieu of notice of Kshs.70,560
  2. 2.Compensation of 5 months' salary in the sum of Kshs.352,800
  3. 3.Terminal dues of Kshs.278,399
  4. 4.Certificate of Service
  5. 5.Costs of the suit

Authorities

#

Legislation

  • Employment ActSection 41(1)
  • Employment ActSection 36
  • Employment ActSection 30
  • Employment ActSection 44(4)(a)
  • Employment ActSections 10(7), 43, 45, 47(5) (as referenced in Akuti quotation)
  • Evidence ActSection 106B
  • Constitution of KenyaArticles 41, 47 and 10

Cases cited (7)

  • Hosea Njeru Kagondu v Kenya Union of Commercial Food and Allied Workers
    [2012] eKLR
  • Alphonce Machanga Mwachanya v Operation 680 Limited
    [2013] eKLR
  • Kennedy Nyangucha Omanga v Bob Morgan Services Limited
    [2013] eKLR
  • George Onyangi Akuti v G4S Securrity Services Limited
    [2013] eKLR
  • CMC Aviation Limited v Mohamed Noor
    (2015)
  • United States International University v Eric Rading Outa
  • William Odhiambo Oduol V Independent Electoral & Boundaries Commission & 2 Others
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair termination claims under the Employment Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Nancy Muthoga v Chandarana Supermarkets [2019] KEELRC 2280 (KLR)", Case Analysis (2019). Cause No 2091 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2280/eng@2019-02-15

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