Florence Audiah Adhiambo v Kenjap Motors Limited [2020] KEELRC 1479 (KLR)
The bottom line
#A Kenyan court ruled a messenger was unfairly dismissed because her employer couldn't prove she absconded, awarding only one month's salary.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant is entitled to notice pay for the termination of employment on 30th April 2016
- 2.Whether the claimant is entitled to overtime pay for 7 years
- 3.Whether the claimant is entitled to pay for untaken annual leave
- 4.Whether the claimant is entitled to pay for public holidays worked
- 5.Whether the termination of employment was unfair and what compensation is due under sections 45 and 49 of the Employment Act, 2007
Key legal issues
#Whether termination of the claimant's employment was unfair
The respondent unfairly terminated the claimant's employment; compensation of one month's wage assessed under section 49
The claimant testified she was verbally dismissed without notice or reasons; the respondent alleged absconding but produced no notices to the claimant. The statutory duty to produce evidence is on the employer, and in the absence of such notices the court believed the claimant. Termination without notice or valid reasons contravenes section 45, and section 49 compensation of one month's wage (Ksh.12,000) was assessed.
Whether the claimant was entitled to overtime pay
No overtime due; the claimant worked within allowable weekly hours
The claimant worked 8am to 6pm Monday to Friday and until 1pm on Saturday, about 60 hours weekly including the lunch hour, which is below the ordinary allowable 64 hours for a 6-day week. Her claim that overtime was unpaid was therefore unsupported.
Whether the claimant was entitled to untaken annual leave
Claim for leave lost for lack of evidence; leave not taken is not a continuing injury beyond 18 months
Relying on E.Torgbor v Ladislaus Odongo Ojuok [2015] eKLR, the court held that annual leave not taken within section 28 is not a continuing injury and is not due beyond 18 months. The claimant did not testify when she last took leave, so the court could not assess what was due and the claim was lost.
Legal principles established
#- The statutory duty to produce evidence of notices to an employee for alleged absconding lies on the employer; absent such notices, the court must accept the employee's account that termination was without notice or reasons
- Annual leave not taken is not a continuing injury and is not due beyond 18 months when it becomes due under section 28 of the Employment Act
- An employer alleging gross misconduct or absconding must issue notice and hear the employee under sections 44(4)(a) and 41(2) of the Employment Act
Court orders
#- 1.Award of compensation for unfair termination assessed at one (1) month's wage of Ksh.12,000
- 2.Dismissal of the claims for notice pay, overtime, leave days and public holidays
- 3.Each party to bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007
Relief refused
#Notice pay of Ksh.12,000
The court found the claimant was paid the April 2016 wage together with notice pay totalling Ksh.24,000, demonstrated as available in the statement of defence
Overtime for 7 years (Ksh.352,800)
The claimant's hours of 8am to 6pm and Saturday until 1pm fell within allowable weekly work hours
Leave days (Ksh.42,000)
Annual leave is not a continuing injury and, absent evidence of when leave was last taken, the claim under section 28 is lost after 18 months
Public holidays pay (Ksh.16,800)
The claimant admitted the claim was erroneous as there was no work on public holidays
Costs
Each party to bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the claims made are found without justification save for award for compensation at ksh.12, 000 and each party to bear own costs.
The statutory duty to produce evidence is on the employer. Without any notices issued to the claimant for the alleged absconding duty, the court has to believe the claimant that employment terminated without notice and without any reasons being given.
the due annual leave if not a continuing injury and not taken within the provisions of section 28 of the Employment Act, 2007 is not due beyond the 18 months when it becomes due
There is no overtime pay due. The claimant worked within the allowable work hours.
Issues in the judgment
#The judgment does not state the case number or full party names; the coram and cause details are incomplete in the text provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Florence Audiah Adhiambo v Kenjap Motors Limited [2020] KEELRC 1479 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1479/eng@2020-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.