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ELRCPartially AllowedCause No 2216 of 2015· [2020] KEELRC 1904 (KLR)

Christine Sarah Muhande v Nanlhang Foreign Engineering Company (K) Ltd [2020] KEELRC 1904 (KLR)

Employment and Labour Relations Court at Nairobi
13 March 2020
ANAbuodha Jorum NelsonBOByram Ongaya
1,349 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 awarded a cleaner modest damages for unfair dismissal, but cut her compensation because she couldn't prove her actual employment dates.

What this practically means

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Executive summary

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The claimant, a cleaner, sued the respondent alleging employment from July 2014 at Kshs 9,100 per month, injury at work on 8th September 2015, and verbal termination without notice on 12th October 2015, together with non-payment of September 2015 salary and house allowance. The respondent denied employment before August 2015, contended the salary was inclusive of house allowance, and asserted the claimant absconded after her sick-off expired and was never terminated. The court found that the claimant failed to prove employment prior to August 2015, as no documents - including Mpesa payment messages she could have produced - supported the longer period, applying the rule that he who alleges must prove. It was common ground that the claimant was injured in the course of duty and went on sick-off which, after extension, expired around 26th September 2015; she neither resumed work nor produced further sick-off until 12th October 2015. While the respondent had a valid substantive ground for dismissal, it failed to follow the due process under section 41(2) of the Employment Act, issuing no show cause letter. The court held the separation was not in accordance with the Employment Act, but the claimant's conduct mitigated the respondent's procedural omission. It awarded one month's salary in lieu of notice (Kshs 9,100) and two months' salary as compensation for unfair termination (Kshs 19,200), totalling Kshs 28,300, with each party bearing their own costs. Judgment dated and delivered on 13th March 2020.

Key legal issues

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01

Proof of the duration of employment

Holding

Employment was proved only from August 2015, not July 2014

Reasoning

The claimant alleged 14 months of service but produced no documents supporting employment prior to August 2015. The respondent produced NHIF, KRA PIN, NSSF registration and attendance records, none showing any earlier period. Since she claimed payment via Mpesa, production of Mpesa messages would have corroborated her claim.

02

Fairness of the termination/summary dismissal

Holding

The separation was substantively justified but procedurally flawed; the claimant's conduct mitigated the procedural failure, justifying reduced compensation

Reasoning

The claimant's extended sick-off ended on 26th September 2015; she neither returned nor produced further sick-off, a valid ground for dismissal. However, the respondent failed to issue a show cause letter or otherwise comply with section 41(2) of the Employment Act. Her conduct mitigated the omission, warranting only two months' salary as compensation.

p. 2

Legal principles established

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  • He who alleges must prove - the burden of proving the employment relationship rests on the claimant
  • Absence from work without lawful cause is a valid ground for summary dismissal, but due process under section 41(2) of the Employment Act must be followed, including a show cause letter or notice to explain

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs 9,100
  2. 2.Two months' salary as compensation for unfair termination of Kshs 19,200 (total award Kshs 28,300)
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Employment Actsection 41(2)
Jurisdiction invoked
Employment and labour relations jurisdiction of the Employment and Labour Relations Court (Cause No 2216 of 2015)

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, "Christine Sarah Muhande v Nanlhang Foreign Engineering Company (K) Ltd [2020] KEELRC 1904 (KLR)", Case Analysis (2020). Cause No 2216 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1904/eng@2020-03-13

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