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ELRCPartially AllowedCause No. 1635 of 2015· [2020] KEELRC 1767 (KLR)

Bismark Sammy Mwendwa v Likat Boutique Limited [2020] KEELRC 1767 (KLR)

Employment and Labour Relations Court
16 January 2020
HWHellen S. Wasilwa
1,726 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 6th December 2010 as a sales assistant earning Kshs. 12,000/- per month, sued over his alleged unfair termination. He claimed that on 21st June 2013 he was arrested at the Respondent's premises on allegations of stealing a pair of shoes, released on police cash bail, and never charged, as no file was produced at Makadara Law Courts. When he reported back to work he was told to await the Respondent's decision, but was instead informed by text message to return his uniform. He sought declarations of unlawful summary dismissal, terminal dues and compensatory damages of Kshs. 186,000/-, interest and costs. The Respondent admitted the employment but contended the Claimant deserted duty after his arrest and that all his dues were paid at separation, urging dismissal of the claim. In evidence, RW1 John Mwaura confirmed no disciplinary hearing was conducted, no action was taken against the Claimant for absconding, the criminal case was not followed up, and no documents existed to prove settlement of dues. The court found the Respondent's insistence on desertion unproven through any disciplinary process and held that the Claimant was terminated for no apparent reason and without due process, contrary to Sections 41, 43 and 45 of the Employment Act. Judgment was entered for the Claimant in Kshs. 120,000/- comprising notice pay, 2013 leave pay and 8 months' compensation, with costs and interest from the date of judgment.

Key legal issues

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01

Whether the termination of the Claimant was substantively and procedurally fair

Holding

The termination was unfair and unjustified - no reason was assigned and no disciplinary hearing was conducted

Reasoning

The court found that although the Respondent insisted the Claimant absconded duty, it never took any disciplinary action against him, never followed up on the criminal matter and never reported the issue to the labour officer. RW1 confirmed no disciplinary hearing was held. The Claimant was instead merely told to await communication which never came, save for a text message to return his uniform. There being no reason assigned and no procedure followed, the termination failed both the substantive and procedural fairness tests under Sections 41, 43 and 45 of the Employment Act.

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02

What remedies flow from the unfair termination

Holding

The Claimant was awarded notice pay, leave pay for 2013 and 8 months' salary as compensation, plus costs and interest

Reasoning

Relying on Section 36 of the Employment Act for notice pay and Section 28 for leave, and the Court's discretion under Section 49 for compensation, the court awarded one month's notice pay (Kshs. 12,000/-), leave pay for the year 2013 (Kshs. 12,000/-) and eight months' salary as compensation for the unfair termination (Kshs. 96,000/-), a total of Kshs. 120,000/-, with costs and interest from the date of judgment.

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Legal principles established

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  • For a termination to be fair there must be both substantive justification and procedural fairness
  • An employer must take an employee through a disciplinary process before termination; termination without an assigned reason and without due process is unfair

Court orders

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  1. 1.Respondent to pay 1 month salary in lieu of notice of Kshs. 12,000/-
  2. 2.Respondent to pay for leave not taken for the year 2013 of Kshs. 12,000/-
  3. 3.Respondent to pay 8 months' salary as compensation for unfair and unjustified termination, Kshs. 96,000/- (total Kshs. 120,000/-)
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSections 36, 41, 43, 45, 28

Cases cited (3)

  • Walter Ogal Anuro Vs Teachers Service Commission
    (2013) eKLR
  • Kenya Union of Domestic, Hotels, Educational Institutions & Hospitals Workers Vs Mombasa Sports Club
    Cause No. 440 of 2013
  • International Planned Parenthood Federation Vs Pamela Ebot Arrey Effiom
    (2016) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Bismark Sammy Mwendwa v Likat Boutique Limited [2020] KEELRC 1767 (KLR)", Case Analysis (2020). Cause No. 1635 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1767/eng@2020-01-16

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