Consolata Akinyi Sidunda & another v Haji Abdhulai [2020] KEELRC 463 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Existence of an employer-employee relationship
The Claimants proved the employment relationship on a balance of probability; the Respondent, though served, failed to attend or controvert their testimony.
Both Claimants testified and corroborated each other, stating they were employed as cleaners from 2009 at Kshs.5,000 monthly, paid in cash without payslips. The Respondent was duly served but did not attend the hearing and did not file submissions, so his defence averments remained unproved and the Claimants' uncontroverted evidence stood.
Wrongful, unfair and unlawful termination
The termination was unfair and un-procedural, the Respondent having failed to comply with Section 41 of the Employment Act, 2007.
The Claimants testified that their employment was terminated in January 2015 without due procedure under the Employment Act, 2007, including non-compliance with the mandatory Section 41 hearing requirement. With the Respondent absent and no evidence justifying the termination, the court found the claims proved on a balance of probability and awarded compensation under Section 49.
Reliefs payable on unfair termination in an undefended claim
Service pay, annual leave pay, pay in lieu of notice, accrued salary and wages, house allowance and five months' compensation were awarded; other heads claimed were not granted.
The court itemised awards per claimant, granting service pay, leave pay, notice pay, outstanding salary/wages, house allowance and five months' compensation in lieu of the twelve months' damages claimed. Heads such as underpayments, public holidays, weekly rest days and overtime did not feature in the final awards.
Legal principles established
#- In an undefended claim, the claimant must still establish all the facts of the claim, including the existence of an employment relationship, before establishing unfair termination.
- The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer.
Court orders
#- 1.Award to Consolata Akinyi Sidunda: Service Pay Kshs.28,215.00; Annual leave pay for 5 years Kshs.39,501.00; Pay in lieu of notice Kshs.9,780.95; December 2014 salary Kshs.9,780.95; 3 days wages for January 2015 Kshs.1,128.60; House allowance at 15% of basic salary Kshs.7,340.00; 5 months compensation Kshs.48,904.75 - Total Kshs.144,651.25
- 2.Award to Everlyne Akoth Owino: Service Pay Kshs.28,215.00; Annual leave pay for 5 years Kshs.39,501.00; Pay in lieu of notice Kshs.9,780.95; 3 days wages for January 2015 Kshs.1,128.60; 5 months compensation Kshs.48,904.75 - Total Kshs.127,530.30
- 3.Claimants awarded costs of the suit
- 4.Interest at court rates from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 35, 41, 47(5), 49 and 90)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Consolata Akinyi Sidunda & another v Haji Abdhulai [2020] KEELRC 463 (KLR)", Case Analysis (2020). Cause No. 1431 of 2015 (consolidated with Cause No. 1432 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/463/eng@2020-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.