Musyoka Muia v Board of Governors, Machakos Girls High School [2020] KEELRC 1734 (KLR)
The bottom line
#A Kenyan school cook lost nearly all his unfair dismissal claims because he ignored a show-cause letter and never returned to work, though he must get a certificate of service.
What this practically means
#Executive summary
#Key legal issues
#Commencement date of employment
Employment formally commenced on 1 January 2012, not 2001
The appointment letter dated 21 December 2011 showed commencement on 1 January 2012. The NSSF Statement showed the Claimant was employed by Lichi Security Systems Ltd in 2007, making continuous service from 2001 improbable. The Court found the official secondary records more probable than the Claimant's assertion of service from 2001.
Unfair termination
Termination was not proved to be unfair; the Claimant failed to discharge his statutory burden
Section 47(5) of the Employment Act places the burden on the employee at the first instance. The Claimant admitted receiving a show-cause letter but did not respond nor resume duty, and did not follow up complaints at the Labour Office. His conduct amounted to repudiation of the contract, precluding compensation and notice pay.
Underpayments
Claim failed; the 2013 minimum wage order could not apply retrospectively to the pleaded 120 months and special damages were not proved
The claim was anchored on the Regulation of Wages (General)(Amendment) Order, 2013 (Legal Notice No. 197 of 2013), effective 1 May 2013, which could not cover the pleaded 120 months. As a claim in the nature of special damages, it also was not proved to the required standard.
Accrued leave
No award made on accrued leave
Section 28(4) of the Employment Act limits the leave days that may be carried forward, capturing most claimed days. Public school holidays made it inconceivable that a cook stayed in school during April, August and December, though the court noted schools should keep proper leave records.
Certificate of service
Entitled; Respondent to issue within 21 days
A certificate of service is a statutory entitlement and the only head of claim that succeeded, so the Respondent was ordered to issue one within 21 days.
Legal principles established
#- Under section 47(5) of the Employment Act, 2007, the employee bears the burden of demonstrating unfair termination at the first instance.
- An employee who fails to respond to a show-cause letter and does not resume duty repudiates the contract, disentitling him to compensation and pay in lieu of notice.
- Underpayment of wages may occur where an employer pays below the contractually agreed wage, or below the prescribed minimum wage, and the applicable minimum wage order only applies from its effective date.
- An employee who is a registered contributor to and contributes towards the NSSF is not eligible for service pay under section 35(5) & (6) of the Employment Act.
Court orders
#- 1.Order to the Respondent to issue a certificate of service to the Claimant within 21 days
- 2.Statement of Claim dismissed with no order on costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007; Labour Relations Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musyoka Muia v Board of Governors, Machakos Girls High School [2020] KEELRC 1734 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1734/eng@2020-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.