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ELRCPartially AllowedCause No. 1587 of 2012· [2020] KEELRC 1085 (KLR)

Veronica Nzilani Musango v Starlight Courier Services [2020] KEELRC 1085 (KLR)

Employment and Labour Relations Court
30 April 2020
HWHellen S. Wasilwa
1,210 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan courier company that stopped an employee from working despite giving notice, then stayed silent in court, was ordered to pay her Kshs. 71,825.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Courier Manager and Supervisor on 15th February 2011 at a monthly salary later enhanced to Kshs. 28,000, alleged that her employment was unfairly terminated by way of summary dismissal on 15th September 2011 on grounds of poor performance, and that the Respondent withheld her terminal dues. She sought a declaration that the dismissal was wrongful and unlawful, terminal dues totalling Kshs. 91,825 (salary arrears, salary for August 2011, 15 days' salary for September 2011, payment in lieu of notice and incurred expenses), costs and further relief. The Respondent admitted the employment but denied unfair termination, asserting it paid all dues, and counterclaimed one month's salary in lieu of notice on the basis that the Claimant absconded duty. At trial the Claimant testified; the Respondent called no witness and closed its case, and did not file submissions. The court found the employment relationship established and the Claimant's case uncontroverted. Although the termination letter gave one month's notice, the Claimant resumed duty but was not permitted to work and was not paid her salary for the period. The court awarded Kshs. 71,825, comprising salary arrears of Kshs. 1,825 for July, Kshs. 28,000 for August and Kshs. 14,000 for September up to 15th September 2011, plus payment in lieu of notice, with costs and interest at court rates from the date of judgment. The claim for incurred expenses of Kshs. 20,000 was not included in the award.

Key legal issues

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01

Whether the summary dismissal was unfair

Holding

The court found the Claimant entitled to her dues; although given one month's notice, she was barred from working and unpaid, entitling her to salary arrears and payment in lieu of notice

Reasoning

The Respondent admitted the employment relationship but failed to call any witness or file submissions, leaving the Claimant's case uncontroverted. The court found that although notice was given, the Claimant resumed duty but was not allowed to work and was not paid her salary, and therefore awarded the salary balances and payment in lieu of notice. The Respondent's counterclaim was not allowed.

p. 3

Legal principles established

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  • Where a respondent fails to call evidence or file submissions, the claimant's case remains uncontroverted
  • An employee given notice but not allowed to work and not paid for the period is entitled to salary arrears and payment in lieu of notice

Court orders

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  1. 1.Payment of salary arrears of Kshs. 1,825 for July and Kshs. 28,000 for August plus Kshs. 14,000 for September up to 15/9/2011
  2. 2.Payment in lieu of notice
  3. 3.Total award of Kshs. 71,825
  4. 4.Costs of the claim to the Claimant
  5. 5.Interest at court rates with effect from the date of judgment

Authorities

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Legislation

  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 49
  • Industrial Court Act, 2011Section 12

Cases cited (1)

  • Daniel Kiplagat Kipkeibut Vs Smep Deposit Taking Micro Finance Limited
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Section 12 of the Industrial Court Act, 2011 (invoked by the Claimant in submissions)

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, "Veronica Nzilani Musango v Starlight Courier Services [2020] KEELRC 1085 (KLR)", Case Analysis (2020). Cause No. 1587 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1085/eng@2020-04-30

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