Willy Kanuna v Capitol Laundry Limited [2020] KEELRC 1155 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment was valid procedurally and substantively
The termination was unlawful and unfair; the Respondent failed to accord the Claimant a hearing and failed to prove desertion
The Respondent pleaded warnings but produced no evidence. It contended desertion, yet RW2 admitted there was no record of absenteeism or theft, and no evidence showed any unauthorised absence or action taken for absence. No steps were shown to give the Claimant a chance to explain the repair works or to conduct a disciplinary hearing contrary to the mandatory provisions of Section 41 of the Employment Act, 2007.
Whether the Claimant is entitled to the reliefs sought
Awarded March 2015 salary, one month's salary in lieu of notice, leave pay for 2 years, and 4 months' salary as compensation; toolbox to be collected; certificate of service to issue
It was not denied the Claimant worked in March 2015, so his salary for that month is due. Having found unfair termination, notice pay is due under Sections 36 and 49(1). The Claimant and RW2 confirmed in cross examination no leave was taken or paid, entitling him to 42 days' pay. Considering length of service and the Respondent's conduct, 4 months' salary was awarded as compensation.
Whether the Respondent's counterclaim for Kshs.103,635 was proved
The counterclaim was dismissed with costs to the Claimant
The Respondent alleged faulty and defective repair works occasioning loss of Kshs.103,635, but RW1 only spoke of Kshs.55,000 paid for a complete overhaul including labour, and the Respondent failed to attach relevant evidence in the form of receipts to prove the sums pleaded. The claim therefore failed on proof.
Legal principles established
#- For a termination to pass the fairness test, there must be both substantive justification and procedural fairness.
- An employer alleging desertion must show the steps it took to inform the employee that dismissal would result if they did not report to work.
- Under Section 47(5) of the Employment Act, the burden of proving unfair termination rests on the employee while the burden of justifying the grounds rests on the employer.
Court orders
#- 1.Judgment for the claimant against the respondent as follows: (i) Withheld Salary for the month of March 2015 - Kshs.23,000; (ii) One month's salary in lieu of notice - Kshs.23,000; (iii) Pay in lieu of leave not taken - Kshs.37,154; (iv) 4 months' salary compensation - Kshs.92,000; total Kshs.175,154
- 2.Costs of the suit and counter claim to the Claimant
- 3.Interest to accrue at court rates from date of judgment till payment in full
- 4.The counterclaim dismissed with costs to the Claimant
- 5.The Claimant directed to collect his tool box from the Respondent's office
- 6.The Claimant entitled to a certificate of service by dint of Section 51 of the Employment Act, 2007
- Jurisdiction invoked
- Original jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Willy Kanuna v Capitol Laundry Limited [2020] KEELRC 1155 (KLR)", Case Analysis (2020). Cause No 1694 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1155/eng@2020-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.