Jane Nduta Muchendu v Eastern Deanery Aids Relief Programme [2021] KEELRC 607 (KLR)
The bottom line
#A Kenyan court dismissed an unfair termination claim because the employee could not prove she was actually fired, only winning a certificate of service.
What this practically means
#Executive summary
#Key legal issues
#Whether sending an employee on unpaid leave amounts to termination of employment
It does not, where the employee consented to the unpaid leave and the respondent continued to treat her as its employee; termination requires complete severance of the employment relationship
Applying the Black's Law Dictionary definition of termination as the complete severance of the employer-employee relationship, the court found that the letter of 24 May 2016 recorded an agreement for unpaid leave, that the claimant had personal problems and exhausted annual leave, and that the respondent, by its letter of 22 June 2016 requesting her to resume duty, still considered her its employee. There was therefore no severance from the respondent's end and no termination was proved.
Whether the claimant signed the unpaid leave letter under duress
The allegation of duress was unsubstantiated as no particulars were furnished
The claimant merely alleged that the Human Resource Manager treated her badly and humiliated her, without particulars of duress or inducement. She further admitted in cross-examination that she did not stand to lose anything by refusing to sign the letter. Applying the Odinga precedent, a bare claim of duress without particulars cannot sustain the allegation.
Entitlement to service pay where the employee is entitled to gratuity
The claim for service pay fails because the claimant's contract provided for gratuity at 15% of gross salary, bringing her within the s 35(6) exclusion
Section 35(5) of the Employment Act makes service pay payable where termination is pursuant to notice, which was not the case here. Further, section 35(6) excludes employees entitled to gratuity. The claimant's contract clause 2(c)(ii) provided for gratuity at 15% of gross salary, so she was ineligible for service pay.
Legal principles established
#- The employee bears the burden of proving unfair termination or wrongful dismissal, including that the employment relationship was severed, before the employer is called upon to justify the grounds for termination
- An employee alleging duress or inducement to sign a document must provide particulars; a bare assertion of being forced is insufficient
- Employees entitled to gratuity under their contract are not eligible for service pay under section 35(6) of the Employment Act
- An employee whose employment relationship is admitted is entitled to a certificate of service
Court orders
#- 1.The claim is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination and employment benefits)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abdallah v Twiga Car Hire & Tours Ltd (Cause 126 of 2018) [2023] KEELRC 232 (KLR)[2023] KEELRC 232 (KLR)27 Jan 2023
Cite this brief
#Cite this brief
Caselaw, "Jane Nduta Muchendu v Eastern Deanery Aids Relief Programme [2021] KEELRC 607 (KLR)", Case Analysis (2021). Cause No 1012 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/607/eng@2021-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.