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ELRCPartially AllowedCause No. 1104 of 2015 (Consolidated with 1105 of 2015)· [2019] KEELRC 2363 (KLR)

Sammy Mbuvi Muthanga & another v Soko Sweety Limited [2019] KEELRC 2363 (KLR)

Employment and Labour Relations Court
6 February 2019
HWHellen S. Wasilwa
1,711 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 firing workers who claimed compensation after a work accident was unfair, awarding them damages and costs.

What this practically means

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Executive summary

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The two Claimants, employees of the Respondent since 2008 and 2009 respectively as importers and distributors of sweets, were involved in a road traffic accident on 12th May 2015 while aboard a company motor vehicle. They contended that the Managing Director told them to stay away from work pending investigations, and that after they pursued compensation from the Respondent's insurers and reported the Respondent to the labour officer over unpaid May 2015 salary, their services were terminated without notice, reasons or a hearing. The Respondent denied terminating them, asserting they were granted sick-off, sent to insurance brokers, and thereafter absconded duty; it counterclaimed for one month's salary in lieu of notice from each Claimant. The court framed four issues and found, on the documentary chronology including the labour officer's letter and the OSHA claim form signed by the Respondent, that the Claimants remained available throughout and that no notice to show cause for abscondment was ever served. It held the Claimants were dismissed, not absconded, and that the dismissal was unfair and unjustified under Section 45(2) of the Employment Act, there being no disciplinary hearing or valid reasons. The counterclaim was dismissed. The court awarded each Claimant one month's pay in lieu of notice, eight months' compensation for unfair termination, salary for days worked in May 2015, and prorata leave pay, plus certificates of service, with costs and interest at court rates from the date of judgment.

Key legal issues

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01

Whether the Claimants were terminated or absconded duty

Holding

The Claimants were dismissed and did not abscond duty

Reasoning

The court examined the chronology: the accident on 12/5/2015, the OSHA claim form signed by the Respondent on 5/6/2015, and the labour officer's letter of 16/6/2015. This demonstrated that the Claimants were always available and actively pursuing the matter. There was no evidence the Respondent attempted to trace the allegedly absconded employees, and no notice to show cause was ever served on them.

p. 2
02

Whether the termination was lawful and fair

Holding

The dismissal was unfair and unjustified under Section 45(2) of the Employment Act

Reasoning

There was no indication of how the employment relationship was severed, no disciplinary hearing was held, and there were no valid reasons to dismiss the Claimants. The employer failed to discharge the burden under Section 45(2) of proving a valid and fair reason related to conduct, capacity or compatibility, or operational requirements, and that the termination followed a fair procedure.

p. 3
03

Whether the Respondent's counterclaim was proved

Holding

The counterclaim was dismissed as not tenable

Reasoning

Having found that the Respondent unfairly terminated the Claimants rather than the Claimants absconding or terminating without notice, the foundation for the counterclaim - that the Claimants terminated employment without notice - fell away.

p. 3

Legal principles established

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  • An employer alleging that an employee absconded duty must demonstrate that it sought the employee and served a notice to show cause before dismissal
  • A termination of employment is unfair where the employer fails to prove a valid and fair reason and a fair procedure, as per Section 45(2) of the Employment Act

Court orders

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  1. 1.Award to 1st Claimant (Sammy Mbuvi Muthanga): 1 month salary in lieu of notice Kshs. 17,500; 8 months' salary as compensation for unfair termination Kshs. 140,000; salary up to 12th May 2015 Kshs. 7,000; prorata leave pay Kshs. 7,292 - total Kshs. 171,792
  2. 2.Award to 2nd Claimant (Michael Ireri Ndwiga): 1 month salary in lieu of notice Kshs. 12,000; 8 months' salary as compensation for unfair termination Kshs. 96,000; salary for 12 days in May 2015 Kshs. 4,800; prorata leave pay Kshs. 5,000 - total Kshs. 117,800
  3. 3.Issuance of a Certificate of Service to each Claimant
  4. 4.Respondent's counterclaim dismissed
  5. 5.Claimants awarded costs of the suit plus interest at Court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 45(2)
Jurisdiction invoked
Article 162(2) of the Constitution read with the Employment and Labour Relations Court Act (jurisdiction of the Employment and Labour Relations Court over employment disputes)

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, "Sammy Mbuvi Muthanga & another v Soko Sweety Limited [2019] KEELRC 2363 (KLR)", Case Analysis (2019). Cause No. 1104 of 2015 (Consolidated with 1105 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2363/eng@2019-02-06

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