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ELRCPartially AllowedCause No. 446 of 2014· [2020] KEELRC 1832 (KLR)

Rev. Peter Matano Munene v Kenya Evangelical Lutheran Church [2020] KEELRC 1832 (KLR)

Employment and Labour Relations Court
13 January 2020
HWHellen S. Wasilwa
1,949 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that cutting a pastor's salary, evicting him from church housing and refusing to assign duties amounted to unfair constructive dismissal, awarding over Kshs. 456,000.

What this practically means

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Executive summary

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The Claimant, a pastor of the Respondent church employed on 3rd January 1996 and later posted to Nairobi Lutheran Parish as Assistant Bishop, sued for compensation for unfair, unlawful and wrongful constructive termination and unpaid terminal dues. He alleged that after obtaining a scholarship in 2007 (approved by the Respondent) to study in the United States, he was asked on 3rd July 2012 to vacate the church house at Jerusalem Parish, his salary and house allowance were stopped, and despite returning in June 2013 he was never assigned duties nor reinstated, allegations he attributed to unfounded rumours of his intention to join another church. He sought reinstatement or, in the alternative, salary arrears, house allowance, untaken leave, general damages of Kshs. 7,500,000/-, costs and interest. The Respondent denied the claim, contending he absconded duty and breached its code of conduct, and filed a counterclaim of Kshs. 130,064/- for a car loan balance. The Respondent, though served, failed to attend the hearing on 8th October 2019, and the claim proceeded undefended. The court found the Claimant's evidence uncontroverted, held that the eviction, non-payment of salary and failure to assign duties pointed to constructive dismissal, and entered judgment for salary arrears of Kshs. 262,480/-, house allowance of Kshs. 39,372/-, one month's salary in lieu of notice of Kshs. 15,440/- and ten months' salary as compensation for unlawful termination of Kshs. 154,400/-, totalling Kshs. 456,252/-, with costs and interest at court rates.

Key legal issues

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01

Whether the Claimant was constructively and unfairly dismissed

Holding

The court found constructive dismissal established on uncontroverted evidence: the Claimant was asked to vacate his house, was never posted to any church and was not paid salary after resuming duties.

Reasoning

The Respondent, despite proper service, failed to attend the hearing, leaving the Claimant's evidence uncontroverted. The evidence showed the scholarship was approved by the Respondent, the Claimant was asked to vacate the parish house on 3/8/2012, was never placed in any other church, and his salary was never paid after he resumed. The court held these facts pointed to constructive dismissal and that the Claimant had established his case as required by law.

p. 4
02

Quantum of awards payable to the Claimant

Holding

The court awarded salary arrears of Kshs. 262,480/-, house allowance of Kshs. 39,372/-, one month's salary in lieu of notice of Kshs. 15,440/- and 10 months' salary as compensation for unlawful termination of Kshs. 154,400/-, totalling Kshs. 456,252/-.

Reasoning

The court computed the awards from the pleaded monthly salary of Kshs. 15,440/-, covering the period from August 2012 to the filing of suit for salary, a formula of 15% of salary for 17 months for house allowance, one month's notice pay, and the statutory maximum-style compensation of ten months' salary for the unlawful termination, with costs and interest at court rates.

p. 4

Legal principles established

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  • An employer's conduct amounting to withholding salary, eviction from employment accommodation and refusal to assign duties constitutes constructive dismissal.

Court orders

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  1. 1.Payment of salary from August 2012 to time of filing suit at Kshs. 15,440/= per month = Kshs. 262,480/=
  2. 2.House allowance from time of eviction to time of filing suit = Kshs. 39,372/=
  3. 3.One month salary in lieu of notice = Kshs. 15,440/=
  4. 4.10 months' salary as compensation for unlawful termination = Kshs. 154,400/= (Total Kshs. 456,252/=)
  5. 5.Respondent to pay costs of the suit plus interest at court rates with effect from the date of the judgment

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 45
  • Employment ActSection 43(1)
  • Employment ActSection 5(3)

Cases cited (3)

  • Daniel Wanjau Muhoho Vs Ol Pajeta Ranching Limited
    (2014) eKLR
  • Pamela Nelima Lutta Vs Mumias Sugar Company Limited
    (2017) eKLR
  • Beatrice Achieng Osir Vs Board of Trustee Teleposta Pension Scheme
    Cause No. 665 of 2011
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (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, "Rev. Peter Matano Munene v Kenya Evangelical Lutheran Church [2020] KEELRC 1832 (KLR)", Case Analysis (2020). Cause No. 446 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1832/eng@2020-01-13

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