Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No E697 of 2021· [2021] KEELRC 156 (KLR)

Esther Wambura Ndegwa v Laboratory and Allied Limited [2021] KEELRC 156 (KLR)

Employment and Labour Relations Court
10 December 2021
MOMaureen Onyango
2,171 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

A Kenyan employer who sacks a worker without any disciplinary process must pay compensation, but employees must still prove claims like overtime with evidence.

What this practically means

#

Executive summary

#
This was an undefended employment claim before the Employment and Labour Relations Court at Nairobi, in which the claimant, an Assistant Sales Administrator employed on 1st November 2016 at Kshs.36,000 per month (later confirmed and raised to Kshs.41,000), alleged that her employment was unfairly and unlawfully terminated by the respondent on 3rd July 2020 on the ground of loss of confidence and trust, without notice of any accusations and without any disciplinary process. Despite proper service, the respondent entered no appearance and filed no defence, so the claim proceeded by way of the claimant's witness affidavit and written submissions. The court framed three issues: existence of an employment relationship, validity of the termination both procedurally and substantively, and entitlement to the reliefs sought. Relying on the employment letter, confirmation letter, payslips and termination letter, the court held the employment relationship proved from 1st November 2016 to 3rd July 2020. Applying the twin test of substantive justification and procedural fairness, it found the termination unfair because the claimant was never subjected to any disciplinary process under Section 41 of the Employment Act, 2007. The court declared the termination unfair and unlawful, awarded six months' salary (Kshs.246,000) as compensation under Section 49(4), and Kshs.41,000 for untaken 2019 leave, totalling Kshs.287,000. The overtime claim and the claim for general damages for breach of constitutional rights were refused for want of proof and want of particulars. The respondent was ordered to pay the claimant's costs with interest from the date of judgment until settlement in full.

Key legal issues

#
01

Existence of employment relationship

Holding

The claimant proved employment from 1st November 2016 to 3rd July 2020 through the employment letter, confirmation letter, payslips and termination letter

Reasoning

The claimant produced a signed employment letter dated 1st November 2016, a confirmation letter dated 18th July 2017, two payslips and the termination letter dated 3rd July 2020. In an undefended claim the claimant bears the burden of establishing all facts, and these documents discharged that burden without contest.

p. 3
02

Procedural and substantive validity of termination

Holding

The termination was unfair because no disciplinary process under Section 41 of the Employment Act was followed

Reasoning

Citing Walter Ogal Anuro v Teachers Service Commission, the court applied the twin test of substantive justification and procedural fairness. The claimant was not informed of any accusations and was not taken through any disciplinary process as required by Section 41 of the Employment Act, 2007; termination was with immediate effect on alleged loss of confidence.

p. 3
03

Reliefs

Holding

Declaration granted; six months' salary compensation awarded; leave for 2019 awarded; overtime and general damages refused for want of proof

Reasoning

Compensation was assessed under Section 49(4) of the Employment Act at six months' salary rather than the twelve sought. Untaken leave for 2019 was awarded because the employer, who bears the duty to keep leave records, filed no evidence to controvert the claim. Overtime and constitutional damages failed for want of proof and pleading.

p. 3

Legal principles established

#
  • A fair termination requires both substantive justification and procedural fairness
  • In an undefended claim the claimant must establish all the facts, including the employment relationship, as a preliminary issue
  • It is the employer's duty to keep and produce records of annual leave taken and due

Court orders

#
  1. 1.A declaration that the Claimant's termination was unfair and unlawful
  2. 2.Compensation of six months' salary (Kshs.246,000) under Section 49(4) of the Employment Act
  3. 3.Payment for untaken leave days for 2019 of Kshs.41,000
  4. 4.Total judgment of Kshs.287,000 in favour of the Claimant
  5. 5.Costs of the suit to the Claimant with interest at court rates from the date of judgment until settlement in full

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 28, 41(1), 47, 159(2)(d), 48
  • Employment Act, 2007Sections 28, 41, 43, 44, 45, 49(4)
  • Regulation of Wages (General) OrderRule 6
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (8)

  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    (2014) eKLR
  • Antony Maina Ruriga v Hilton Hotel Nairobi
    (2020) eKLR
  • Peris Nyambura Kimani v Dalibit Petroleum Limited
    (2015) eKLR
  • Rajab Barasa & 4 Others v Kenya Meat Commission
    (2016) eKLR
  • Monica Kanini Mutua v Al-Arafat Shopping Centre & another
    (2018) eKLR
  • Herman Ilangarwa Shidakwa v Armati Security Solutions Limited
    (2019) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Meshack Kiio Ikulume v Prime Fuels Kenya Limited
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Articles 28, 41(1) and 47 of the Constitution and the Employment Act, 2007 invoked in the claim)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (4)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Esther Wambura Ndegwa v Laboratory and Allied Limited [2021] KEELRC 156 (KLR)", Case Analysis (2021). Cause No E697 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/156/eng@2021-12-10

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