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ELRCDismissedEmployment Cause (number not stated in judgment)· [2019] KEELRC 2325 (KLR)

Josphat Shakwila v Sarah Njoki Maina t/a Mukawa Tents and Caterers [2019] KEELRC 2325 (KLR)

Employment and Labour Relations Court
5 February 2019
MOMaureen Onyango
1,637 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court ruled that an employee who walks away from a job, rather than being dismissed, cannot claim unfair termination compensation in Kenya.

What this practically means

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Executive summary

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The claimant, represented by Ongegu & Associates, claimed wrongful and unfair termination of employment by the respondent in December 2012, seeking December 2012 salary, one month's salary in lieu of notice, severance pay for 21 years, twelve months' salary as compensation, interest and costs. The respondent admitted the claimant was its employee from 1992 as a kitchen assistant later promoted to cook, but denied termination. It explained that its lease at Cargen House expired, forcing it to vacate on 31st December 2012, and that at the claimant's request it recommended him to Wakawaka Hotel, where he secured employment. It asserted that December 2012 salary was paid, a certificate of service issued, and that other employees resumed at new premises from January/February 2013 except the claimant. Both parties testified and filed submissions; the claimant relied on Section 41 and 45(2) of the Employment Act and two authorities on mandatory hearing requirements. The court framed two issues: whether termination was valid procedurally and substantively, and entitlement to reliefs. It held that the facts did not support termination: the claimant opted to leave while the respondent was stranded without premises and secured alternative employment with the respondent's assistance. The claimant failed to prove his employment was terminated at all, and was thus not entitled to notice pay, severance pay or compensation. The NSSF remittance claim was referred to NSSF as the statement filed was illegible. The claim was dismissed in its entirety with each party to pay its own costs.

Key legal issues

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01

Whether the claimant's employment was terminated

Holding

No termination of employment was proved; the claimant left the employer of his own volition when the business premises were unavailable and secured alternative employment with the respondent's assistance

Reasoning

The respondent's lease expired at the end of December 2012 and the business was stranded without premises. The claimant opted to leave and, with the respondent's assistance, secured a job at Wakawaka Hotel where he was still working at the time of trial. When the respondent later obtained alternative premises in February 2013, it relocated with all its staff except the claimant, who never expressed any wish to resume duty. The court found the claimant was impatient and did not wait for the respondent to secure alternative premises.

p. 3
02

Entitlement to the reliefs sought (notice pay, severance pay, compensation)

Holding

None of the reliefs were available because there was no termination, no redundancy and no unfair termination

Reasoning

Having found the employment was not terminated, the claimant was not entitled to pay in lieu of notice. Severance pay applies only upon declaration of redundancy, which did not occur. Compensation under Section 49 of the Employment Act presupposes unfair termination, which was not established. December 2012 salary had been paid as admitted by the claimant. The NSSF remittance claim was unsupported by legible evidence and was referred to NSSF.

p. 3

Legal principles established

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  • An employee who walks out on an employer because the employer has no premises to operate from cannot validly claim that his employment was terminated
  • A claimant alleging unfair termination bears the burden of proving that his employment was terminated at all

Court orders

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  1. 1.The claim is dismissed in its entirety
  2. 2.Each party shall pay its costs
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court under Article 162(2) of the Constitution (employment cause; specific basis not expressly stated in the judgment)

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, "Josphat Shakwila v Sarah Njoki Maina t/a Mukawa Tents and Caterers [2019] KEELRC 2325 (KLR)", Case Analysis (2019). Employment Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2325/eng@2019-02-05

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