Maureen Nyaboke v Creative Consolidated System Limited [2021] KEELRC 26 (KLR)
The bottom line
#A Kenyan court ruled an employee fired without notice, reasons or a hearing was unfairly terminated, awarding her pay, compensation and costs.
What this practically means
#Executive summary
#Key legal issues
#Fairness of termination in the absence of notice, reasons and hearing
Termination without notice, reason or hearing was unfair, entitling the claimant to compensation under sections 45 and 49 of the Employment Act, assessed at 3 months' gross wage (Ksh.29,400) for 8 years of service
The Employment Act requires an employer to issue notice, give reasons and accord a hearing before terminating employment. The respondent never appeared, filed no defence and produced no work records, so the claimant's unchallenged testimony that her employment was terminated on 21st July 2016 without reasons, notice or a hearing stood uncontroverted. Failure to abide due process rendered the termination unfair and compensation of 3 months' gross wage was found appropriate.
Accumulated leave pay
Leave entitlement is capped at 18 months' accumulation under section 28(2); leave pay of Ksh.14,700 awarded
Although the claimant sought leave pay for 8 years, section 28(2) of the Employment Act limits leave accumulation to 18 months. Applying that cap to the monthly wage of Ksh.9,800, the court computed what was due at Ksh.14,700 rather than the Ksh.78,400 claimed.
Overtime and service pay claims
Both claims declined for lack of particulars and proof
The claimant's pleadings and evidence did not explain how the 48-day overtime claim arose. On service pay, apart from asserting that NSSF contributions were not remitted, no case was made as to the nature of employment that would found an entitlement to service pay. Both claims therefore failed even though the claim was otherwise unchallenged.
Legal principles established
#- Termination of employment must comply with the procedural and substantive requirements of the Employment Act
- Where an employer fails to appear or file defence and produce work records, unchallenged claims are taken as established
- Leave can only be accumulated for a maximum of 18 months under section 28(2) of the Employment Act
- Salary for work done is payable regardless of the reasons leading to termination
Court orders
#- 1.Judgment entered for the claimant against the respondent in the sum of compensation Ksh.29,400
- 2.Notice pay of Ksh.9,800
- 3.Leave pay of Ksh.14,700
- 4.Unpaid wages for July of Ksh.6,860
- 5.Costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 28, 35, 41, 43, 45 and 49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maureen Nyaboke v Creative Consolidated System Limited [2021] KEELRC 26 (KLR)", Case Analysis (2021). Cause No. 2392 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/26/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.