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ELRCPartially AllowedNot stated in the judgment extract (Employment and Labour Relations Court Claim)· [2020] KEELRC 405 (KLR)

Mutunga Nyamai v Chancery Restaurant Limited t/a China Plate [2020] KEELRC 405 (KLR)

Employment and Labour Relations Court
8 October 2020
OMONESMUS N MAKAU
2,871 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 an employer must prove an employee's resignation letter is genuine, or the dismissal counts as unfair.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 1.7.2002 as a cleaner and later butchery/kitchen attendant, alleged he was summarily dismissed verbally on 1.1.2015 on a false allegation of lateness. The respondent denied the dismissal, contending he tendered a resignation letter on 3.1.2015 effective 7.1.2015, and counter-claimed for Kshs. 10,600 being one month's salary in lieu of notice for resigning without notice. The court framed four issues: whether the claimant resigned or was dismissed; whether the dismissal was unfair; entitlement to reliefs; and the counter-claim. The court held the respondent failed to discharge the burden of proving the resignation letter since no handwriting expert was called despite the claimant disowning the signature; and the respondent's own correspondence (response to the labour officer, dues tabulation and certificate of service) showed the claimant worked until 31.12.2014. The court found the verbal dismissal on 1.1.2015 proved on a balance of probability, and unfair under sections 43, 45 and 41 of the Employment Act, the respondent having proved neither a valid reason nor procedural fairness, applying Walter Ogal Anuro. The claimant was awarded one month's salary in lieu of notice (Kshs. 12,200, computed on basic pay plus house allowance, excluding overtime and ex gratia, following the Leakey decision) and 12 months' compensation (Kshs. 146,400), total Kshs. 158,600, subject to statutory deductions, with costs and interest. The counter-claim was dismissed. Judgment delivered online on 8 October 2020 pursuant to Covid-19 directives, with the parties waiving Rule 28(3) compliance.

Key legal issues

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01

Whether the claimant resigned or was dismissed

Holding

The respondent failed to prove the resignation letter; the claimant proved he was verbally dismissed on 1.1.2015

Reasoning

The claimant disowned the signature on the resignation letter and the respondent, who relied on the document, did not call a handwriting expert to prove authorship. Further, the respondent's own correspondence (response to the labour office, tabulation of dues and certificate of service dated 26.1.2015) indicated the claimant worked until 31.12.2014, undermining the assertion of a resignation effective 7.1.2015.

p. 3
02

Whether the dismissal was unfair and unlawful

Holding

The dismissal was unfair - the respondent proved neither a valid reason nor a fair procedure

Reasoning

Under section 43(1) the employer must prove the reason for termination, and under section 41 must hear the employee before termination on grounds of misconduct. The respondent maintained the claimant resigned and made no effort to prove the alleged lateness or compliance with section 41. Following Walter Ogal Anuro, both substantive justification and procedural fairness are required for a termination to pass the fairness test.

p. 4
03

Quantum of relief

Holding

One month's notice pay of Kshs. 12,200 (basic pay plus house allowance) and 12 months' compensation of Kshs. 146,400

Reasoning

Overtime and ex gratia payments were excluded from gross monthly pay as they depend on actual performance or employer discretion, per the Richard Erskine Leakey decision. Twelve months' compensation was awarded given the claimant's 12 years of service, absence of misconduct contributory to the dismissal, and non-payment of service gratuity or pension.

p. 4
04

The counter-claim

Holding

Counter-claim dismissed with the claim

Reasoning

Having found that the respondent did not prove the alleged resignation, the foundation of the counter-claim for one month's salary in lieu of notice under section 36 of the Employment Act fell away, and the counter-claim was devoid of merit.

p. 4

Legal principles established

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  • The burden of proving a resignation letter relied on by an employer lies with the employer, who should ordinarily call handwriting evidence if the employee disowns the signature
  • An employer must prove both a valid reason and fair procedure for termination; failure renders the termination unfair under sections 43 and 45 of the Employment Act
  • Allowances dependent on actual performance of work are excluded from gross salary when computing damages for unfair termination

Court orders

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  1. 1.Declaration that the dismissal was unfair and unlawful within the meaning of section 45 of the Employment Act
  2. 2.Award of one month's salary in lieu of notice of Kshs. 12,200
  3. 3.Award of 12 months' salary as compensation for unfair dismissal of Kshs. 146,400
  4. 4.Judgment for the claimant in the total sum of Kshs. 158,600, subject to statutory deductions
  5. 5.Costs of the suit to the claimant plus interest at court rates from the date of judgment
  6. 6.Counter-claim dismissed

Authorities

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Legislation

  • Employment Actsections 36, 41(1), 41(2), 42(1), 43(1), 44(3), 44(4), 45(1), 45(2), 49(1)
  • Evidence Actsections 70, 107
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (6)

  • Aloiys Jume Ogola v Pepco Kenya Limited
    [2014] eKLR
  • Stephen Miheso v Kaimosi Tea Estate Limited
    [2014] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Catherine Kanaiza Aradi v Little Lambs Company Limited (Little Lambs Children Centre)
    [2017] eKLR
  • Cheruiyot Kipkemoi Joel v Tirgaga Tea Factory Co. Limited
    [2017] eKLR
  • Richard Erskine Leakey & 2 Others v Samson Kipkoech Chemai
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (sections 41, 43, 45, 49 applied)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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

Cite this brief

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Cite this brief

Caselaw, "Mutunga Nyamai v Chancery Restaurant Limited t/a China Plate [2020] KEELRC 405 (KLR)", Case Analysis (2020). Not stated in the judgment extract (Employment and Labour Relations Court Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/405/eng@2020-10-08

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