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ELRCPartially AllowedNot stated in the extract (Memorandum of Claim dated 8th April, 2016, filed 12th April, 2016)· [2020] KEELRC 216 (KLR)

Benjamin Mutuku Kimuyu v Nguvu Construction & Mining Limited [2020] KEELRC 216 (KLR)

Employment and Labour Relations Court
11 November 2020
2,922 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employee on suspension did not abscond—he was unfairly dismissed—awarding him Kshs. 696,000 because the employer never followed up or followed due process.

What this practically means

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Executive summary

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The Claimant, employed as a Site Manager from 9th February 2011, sued for compensation for unfair and unlawful termination of his employment on or about 16th February 2016, plus terminal dues including 12 months' salary as compensation, unpaid leave, pay in lieu of notice, overtime, house allowance and a certificate of service. The Respondent admitted the employment but maintained that the Claimant absconded lawful duties during a 30-day suspension imposed on 16th February 2016 to allow investigations into alleged gross misconduct, and that the absconding amounted to repudiation of the contract. It further argued that the Claimant received a consolidated salary (no house allowance) and, as a managerial employee, was not entitled to overtime. The court framed three issues: whether the Claimant was dismissed or absconded duty; whether the dismissal was fair and justified; and entitlement to remedies. The court found that the Respondent failed to follow up on the suspension, never replied to the Claimant's letter demanding terminal dues, and issued no notice to show cause; it therefore held that the Claimant did not abscond duty but was dismissed. No disciplinary process was instituted and no valid reasons were proved, contrary to Sections 41 and 45 of the Employment Act, so the dismissal was unfair and unjustified. On remedies, the court awarded one month's salary in lieu of notice, unpaid leave and house allowance limited to three years as the rest was time barred, eight months' salary as compensation, and a certificate of service, totalling Kshs. 696,000/- less statutory deductions, with costs and interest to the Claimant.

Key legal issues

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01

Whether the Claimant was dismissed or absconded duty

Holding

The Claimant did not abscond duty; he was dismissed.

Reasoning

The Claimant was placed on 30 days' suspension on 16/2/2016. When he wrote inquiring and demanded terminal dues, the Respondent neither replied nor advised him to await the lapse of the suspension. No notice to show cause was issued for absconding. The court held the employer should have followed up on the suspension and advised the Claimant, so absconding did not arise and the Claimant was dismissed.

p. 4
02

Whether the dismissal was fair and justified

Holding

The dismissal was unfair and unjustified.

Reasoning

Under Section 41 of the Employment Act, an employer must explain reasons and hear representations before termination; under Section 45(2), the employer must prove valid reason, fair reason and fair procedure. No disciplinary process was instituted against the Claimant either for absconding or for the allegations in the suspension letter, and no valid reasons were proved.

p. 4
03

Whether the Claimant is entitled to the remedies sought

Holding

Partially: notice pay, 3 years' unpaid leave, 3 years' house allowance, 8 months' salary as compensation, and a certificate of service were awarded; other claims failed or were time barred.

Reasoning

Having found unfair termination, the court exercised discretion under Section 49 of the Employment Act, awarding the equivalent of 8 months' salary as compensation, one month's notice pay, and leave and house allowance limited to three years as the remainder was time barred, plus a certificate of service.

p. 5

Legal principles established

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  • An employer who suspends an employee pending investigations must follow up on the suspension, inform the employee of the results and advise on the next course of action; failure to do so means the employee cannot be treated as having absconded duty.
  • Termination without due process under Section 41 and without proof of valid reasons under Section 45 of the Employment Act is unfair and unjustified.

Court orders

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  1. 1.1 month's salary in lieu of notice = Kshs. 40,000/-
  2. 2.Unpaid leave for 3 years preceding the termination, the rest of the years being time barred = Kshs. 12,000/-
  3. 3.Unpaid house allowance for 3 years (the rest also being time barred) = Kshs. 216,000/-
  4. 4.8 months' salary as compensation for the unfair and unlawful termination = Kshs. 320,000/-
  5. 5.Total award of Kshs. 696,000/- less statutory deductions
  6. 6.Issuance of a certificate of service to the Claimant
  7. 7.Respondent to pay costs of the suit plus interest at Court rates from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 42(1)
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(3) and (4), including 44(4)(a)
  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 49 (including 49(4)(k))
  • Employment Act, 2007Section 50
  • Employment Act, 2007Section 27
  • Employment Act, 2007Section 28
  • Employment Act, 2007Section 31
  • Employment Act, 2007Section 35(5)
  • Employment Act, 2007Section 36
  • Employment Act, 2007Section 52
  • Constitution of Kenya, 2010Article 41

Cases cited (9)

  • Nicholus Muasya Kyula Vs Farmchem Limited
    (2012) eKLR
  • Fredrick Saundu Amolo Vs Principal Namanga Mixed Day Secondary School & 2 Others
    (2014) eKLR
  • Donald Mumo Moses Vs MidWave Freighters Limited
    (2014) eKLR
  • James Kabengi Mugo vs Syngenta East Africa Limited
    (2013) eKLR
  • Vitalis Omondi Othuon Vs National Water Conservation & Pipeline Corporation
    Industrial Cause No. 99 of 2012
  • Alice Njoki Miringu Vs Barclays Bank of Kenya Limited
    Industrial Cause No. 29 (N) of 2010
  • Elijah Tanui Vs Ngara Opticians T/A Bright Eyes Limited
    (2012) eKLR
  • David Nyanjui Mburu Vs Sunmatt Limited
    (2017) eKLR
  • Daniel Kioko Pius Vs Athi River Steel Plant Limited
    (2017) eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution and the Employment Act, 2007 (fair labour practices under Article 41 pleaded)

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, "Benjamin Mutuku Kimuyu v Nguvu Construction & Mining Limited [2020] KEELRC 216 (KLR)", Case Analysis (2020). Not stated in the extract (Memorandum of Claim dated 8th April, 2016, filed 12th April, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/216/eng@2020-11-11

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