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ELRCPartially AllowedEmployment and Labour Relations Cause (memorandum of claim dated 7th November 2016, filed 8th November 2016)· [2021] KEELRC 484 (KLR)

Njoki Jane Nyambura v Yong Li Casino & another [2021] KEELRC 484 (KLR)

Employment and Labour Relations Court
11 November 2021
JGJacob Gakeri
3,884 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, a waitress employed by the Respondent's casino in January 2016 at a gross monthly salary of Kshs.12,100, claimed she was verbally dismissed on 23rd July 2016 by the Human Resource Manager, Mr. John Masika, after a patron gave her a casino token worth Kshs.10,000 which she cashed through the Manager on duty in line with the casino's procedure. She sought 12 months' salary compensation, notice pay, service gratuity, prorata leave, a certificate of service, costs and interest. The Respondent denied dismissing her, asserting she was still on probation and absconded duty after being asked to account for a stolen token. The court framed three issues: whether the Claimant was on probation, whether the termination was fair, and entitlement to reliefs. Applying Section 2 of the Employment Act, the court found that a probationary contract must be in writing and expressly so stated; the Respondent produced no appointment letter or document, so probation was not established. On fairness, the court held that the Respondent had no valid reason for the dismissal and no disciplinary hearing under Section 41; it never reviewed CCTV footage, called no witnesses to confirm the allegation that the Claimant refused to explain the token, and took no steps to contact her or issue a show cause or termination letter, rendering her account uncontroverted. The dismissal was unfair for want of substantive and procedural fairness. Compensation under Section 49 was limited to two months' salary given her six months' service and re-employment within a year; notice pay of Kshs.12,100 and prorata leave of Kshs.4,232 were awarded; service gratuity was declined for want of contractual basis; a certificate of service was ordered. Judgment for Kshs.40,532 with costs and interest at court rates from the date of judgment.

Key legal issues

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01

Whether the Claimant was on a probationary contract

Holding

The Respondent failed to establish that the Claimant was on probation

Reasoning

Section 2 of the Employment Act defines a probationary contract as one of not more than twelve months' duration, in writing and expressly stating it is for a probationary period. The Respondent gave no letter of appointment and produced no document establishing probationary terms or duration, so the claim of probation failed.

p. 4
02

Whether the termination was substantively and procedurally fair

Holding

The dismissal was unfair for want of substantive justification and procedural fairness

Reasoning

Under Sections 41, 43 and 45(2) of the Employment Act, the employer must prove a valid and fair reason and a fair procedure. The Respondent alleged theft of a casino token but never reviewed CCTV footage, called no confirmatory witnesses (Mr. Musembi and others did not testify), did not issue a notice to show cause or termination letter, and never contacted the Claimant after sending her home. The Claimant's account remained uncontroverted.

p. 5
03

Whether the Claimant was entitled to pay in lieu of notice

Holding

Entitled to one month's salary in lieu of notice

Reasoning

Having found that the Claimant was terminated by word of mouth without notice, Section 35/36 of the Employment Act entitled her to one month's pay in lieu of notice, awarded at Kshs.12,100.

p. 5

Legal principles established

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  • A probationary contract must be in writing and expressly state that it is a probationary contract; without such documentation an employer cannot rely on probationary status
  • An employer relying on the defence of absconding duty must adduce evidence of reasonable steps taken to contact the employee and must issue a show cause letter and termination letter

Court orders

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  1. 1.Compensation of two months' salary (Kshs.24,200) for unfair termination
  2. 2.One month's salary in lieu of notice (Kshs.12,100)
  3. 3.Prorata leave of 10½ days (Kshs.4,232)
  4. 4.Certificate of service to issue in favour of the Claimant
  5. 5.Judgment for the Claimant for Kshs.40,532 with costs
  6. 6.Interest at court rates from the date of judgment till payment in full

Authorities

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Legislation

  • Employment ActSection 45(2)
  • Employment ActSection 47(5)
  • Employment ActSection 41
  • Employment ActSection 45(4)
  • Employment ActSection 49(1)
  • Employment ActSection 2 (definition of probationary contract)
  • Employment ActSection 35
  • Employment ActSection 36
  • Employment ActSections 43, 44
  • Employment ActSection 49(1)(c)
  • Employment ActSection 49(4)
  • Employment ActSection 28(1)(a)
  • Employment Act, 2007Section 42(1)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (7)

  • Mourine Achieng Madagow & another v African Banking Corporation Ltd
    [2020] eKLR
  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Kenfreight (EA) Ltd v Benson K. Nguti
    [2019] eKLR
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
  • Kenafric Industries Ltd v John Gitonga Njeru
    [2016] eKLR
  • Naima Khamis v Oxford University (EA) Ltd
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim for unfair termination)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Njoki Jane Nyambura v Yong Li Casino & another [2021] KEELRC 484 (KLR)", Case Analysis (2021). Employment and Labour Relations Cause (memorandum of claim dated 7th November 2016, filed 8th November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/484/eng@2021-11-11

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