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ELRCPartially AllowedCause (Employment and Labour Relations Court, Nairobi) - Memorandum of Claim dated 17th February 2016; number not stated in judgment· [2020] KEELRC 711 (KLR)

Millicent Owade v Essentials Manufacturing Company Limited [2020] KEELRC 711 (KLR)

Employment and Labour Relations Court
17 July 2020
2,836 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan employer who cannot produce employment records and give a hearing loses an unfair termination claim and pays damages.

What this practically means

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Executive summary

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The claimant, employed on 6th March 2015 as a Sales Manager at a monthly salary of Kshs.120,560, alleged that on 5th October 2015 the respondent terminated her employment for unsatisfactory performance without notice or a hearing, and claimed terminal dues and 12 months' salary as damages. The respondent denied the claim, asserting the claimant performed poorly and left employment willingly/absconded. The court framed three issues: whether the claimant absconded or was summarily dismissed; whether the dismissal was wrongful and unfair; and entitlement to reliefs. The court found the respondent produced no employment records or warning letters as required under Section 74(1) of the Employment Act, while the claimant tendered emails evidencing termination and follow-up for dues; it concluded she was summarily dismissed and had not absconded. Under Section 47(5) the claimant discharged her burden of proving unfair termination; she was neither heard nor given notice, contrary to Sections 41, 43 and 45, so the termination was unfair. Applying Section 49 and considering the manner of termination and Section 49(4) factors, the court awarded 4 months' salary as compensation instead of the 12 months claimed, plus notice pay, the September 2015 salary and 2 days' October salary, totalling Kshs.732,634. The house allowance claim was dismissed for want of proof of entitlement. A certificate of service, costs and interest at court rates from the date of judgment were ordered. Judgment was delivered virtually at Nairobi on 17th July 2020 under COVID-19 directions.

Key legal issues

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01

Whether the claimant absconded or was summarily dismissed

Holding

The claimant did not wilfully abscond; she was summarily dismissed without prior notice.

Reasoning

The respondent alleged the claimant absconded, but produced no documentary employment records or copies of the warning letters RW1 claimed to have issued, contrary to the employer's record-keeping duty under Section 74(1)(l) of the Employment Act. The claimant tendered emails showing termination and follow-up for unpaid dues. The court therefore drew the inference that she was dismissed and that the respondent wanted it to appear as a resignation.

p. 4
02

Whether the termination was wrongful and unfair

Holding

The termination was unfair under Sections 41, 43 and 45 of the Employment Act.

Reasoning

The burden of proving unfair termination rests on the employee under Section 47(5), and the claimant discharged it. She was never afforded a hearing nor given notice, contrary to Section 41. The court cited Donald Odeke v Fidelity Security Ltd that termination without a hearing is ipso facto unfair, and found the summary dismissal unfair.

p. 4
03

Entitlement to reliefs

Holding

Claimant awarded September salary, 2 days' October salary, notice pay, 4 months' compensation and certificate of service; house allowance claim dismissed.

Reasoning

Under Section 49 of the Employment Act the claimant was entitled to compensation for wrongful dismissal; the court awarded 4 months' salary considering the manner of termination and Section 49(4) factors. Notice pay was granted under Section 49(1)(a), and the September salary which the respondent partially admitted. The house allowance claim failed for want of proof of entitlement.

p. 4

Legal principles established

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  • An employer bears the burden of keeping employment records including warning letters under Section 74(1) of the Employment Act, and failure to produce such records defeats an allegation of abscondment.
  • Where an employee is not afforded a hearing before termination, the termination is unfair regardless of the alleged offence.
  • Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment rests on the employer (Section 10(7), Employment Act).

Court orders

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  1. 1.Declaration that the respondent unfairly terminated the employment of the claimant
  2. 2.Payment of salary for September 2015 of Kshs.120,560
  3. 3.Payment of salary for 2 days worked in October of Kshs.9,274
  4. 4.Pay in lieu of notice of Kshs.120,560
  5. 5.4 months' salary as compensation of Kshs.482,240, total award Kshs.732,634
  6. 6.Respondent to issue a Certificate of Service
  7. 7.Costs of the suit to the claimant
  8. 8.Interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 74(1)
  • Employment ActSections 41, 43 and 45
  • Employment ActSection 49(1) and Section 49(4)
  • Employment ActSection 49(1)(a)
  • Employment ActSection 44(4)
  • Employment ActSection 47(5)
  • Employment ActSection 10(7)
  • Employment ActSection 31
  • Employment ActSection 51
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 28(1)(e)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (8)

  • Patrick Chebos v Stokman Rozen Kenya Limited
    [2016] eKLR
  • Alphonce Maghanga Mwanchanya v Operations 680 Limited
    Industrial Cause No. 146 of 2012
  • Joshua Otiego Apiyo v Modern Coast Express Limited
    [2019] eKLR
  • Banking, Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd
    [2014] eKLR
  • Simon Mbithi Mbane v Inter Security Services Limited
    [2018] eKLR
  • Ol Pejeta Ranching Limited v David Wanjau Muhoro
    [2015] eKLR
  • Moi Teaching and Referral Hospital v James Kipkonga Kendagor
    [2019] eKLR
  • Donald Odeke v Fidelity Security Ltd
    Cause No. 1998 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; Employment and Labour Relations Court (Procedure) Rules, 2016 referred to

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Millicent Owade v Essentials Manufacturing Company Limited [2020] KEELRC 711 (KLR)", Case Analysis (2020). Cause (Employment and Labour Relations Court, Nairobi) - Memorandum of Claim dated 17th February 2016; number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/711/eng@2020-07-17

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