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ELRCDismissedNot stated in judgment· [2020] KEELRC 1365 (KLR)

Josephat Munene Murangu v EMCO Billets & Steel Limited [2020] KEELRC 1365 (KLR)

Employment and Labour Relations Court
13 March 2020
BOByram Ongaya
749 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court dismissed a worker's unfair termination claim because his testimony contradicted his pleadings and older claims were time barred.

What this practically means

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Executive summary

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The claimant, employed as a manual labourer in May 2010 at Kshs.12,150.00 per month, sued the respondent alleging unlawful termination of his contract in September 2012 for breach of section 41 of the Employment Act, 2007, and sought Kshs.486,001.00 comprising pay in lieu of notice, overtime, house allowance, 21 leave days, service pay and 12 months' compensation, plus interest, costs and a certificate of service. The respondent admitted the employment but contended the claimant absconded; it denied breach of section 41 and asserted that leave was paid out, house allowance was included in pay, service pay was precluded by NSSF membership with remitted dues, and no compensation was due. At hearing the respondent was absent and non-cooperative, its case closing without witness statement or submissions; the claimant testified. The court found the contract of service undisputed, but the claimant's testimony - that he was dismissed for suing the respondent over workplace injuries - was inconsistent with his pleaded case of procedural breach under section 41, rendering his account untrustworthy and unfair termination unproven. The compensation and notice pay claims failed. The leave, house allowance and overtime claims were characterised as continuing injuries and held time barred under the 12-month rule running from cessation of the injury; the claimant had also admitted payment for all days worked. Service pay was barred by section 35 given NSSF membership with dues remitted. The certificate of service was to issue as conceded. Judgment was entered for the respondent dismissing the suit, with each party bearing own costs, the court considering the respondent's own failure to comply with court rules and directions.

Key legal issues

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01

Unfair/unlawful termination

Holding

Termination not established as unfair or unlawful; compensation and notice pay refused

Reasoning

The claimant pleaded breach of section 41 procedure but testified he was dismissed for suing the respondent over workplace injuries. The court found the evidentiary account inconsistent with the pleadings, rendering the claimant's account untrustworthy. Having failed to establish unfair or unlawful termination, the compensation and notice pay claims necessarily failed. The respondent's own non-cooperation at hearing did not alter this evidentiary outcome.

p. 2
02

Limitation on continuing-injury claims

Holding

Leave, house allowance and overtime claims were time barred

Reasoning

The suit was filed on 24.06.2015 but the alleged dismissal was in September 2012. The court characterised the annual leave, house allowance and overtime claims as continuing injuries, with a 12-month limitation period from cessation of the continuing injury. The claims therefore fell outside the limitation window. Further, the claimant's own testimony that he was paid for all days worked implied overtime was not due.

p. 2
03

Service pay

Holding

Not due; NSSF membership and remittance exclude entitlement under section 35

Reasoning

Section 35 of the Employment Act excludes service pay where the employee is a member of a provident or pension fund to which statutory contributions are remitted. The claimant exhibited his NSSF statement confirming the respondent remitted dues, defeating the service pay claim of Kshs.15,188.00.

p. 2

Legal principles established

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  • Claims arising as continuing injuries attract a 12-month limitation period running from cessation of the continuing injury
  • Service pay is not payable under section 35 of the Employment Act where the employee is a member of NSSF with dues remitted
  • A claimant whose pleaded and testified reasons for termination are inconsistent cannot be trusted and bears the consequence of failing to prove unfair termination

Court orders

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  1. 1.Judgment entered for the respondent against the claimant for dismissal of the suit
  2. 2.Each party to bear own costs of the suit
  3. 3.Certificate of service to issue to the claimant as conceded by the respondent
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (employment dispute)

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, "Josephat Munene Murangu v EMCO Billets & Steel Limited [2020] KEELRC 1365 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1365/eng@2020-03-13

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