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ELRCDismissedCause No 1012 of 2017· [2021] KEELRC 607 (KLR)

Jane Nduta Muchendu v Eastern Deanery Aids Relief Programme [2021] KEELRC 607 (KLR)

Employment and Labour Relations Court
29 October 2021
3,131 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 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

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Executive summary

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The claimant, employed by the respondent as an AA officer on yearly renewable contracts from 1 July 2007, claimed that her employment was terminated on 24 May 2016 when she was sent on four months' unpaid leave. She sought a declaration of unlawful termination, May 2016 salary, notice pay, service pay, 12 months' compensatory damages, a certificate of service, costs and interest. The respondent denied terminating her, asserting she consented to unpaid leave to address personal problems and declined to resume duty when requested. The court framed three issues: whether the claimant was terminated, whether such termination was unfair, and what reliefs availed. Relying on section 47(5) of the Employment Act and the Court of Appeal decision in Pius Machafu Isindu v Lavington Security Guards Limited, the court held the claimant bore the burden of proving complete severance of the employment relationship. Finding that the 24 May 2016 letter recorded an agreed unpaid leave to enable the claimant seek psychological counselling, that she had admitted personal problems and absence from work, and that the respondent had by letter of 22 June 2016 requested her to resume duty, the court inferred there was no severance of the employment relationship and no termination was proved. The duress allegation was unsubstantiated for want of particulars. The claims for salary, notice pay, compensatory damages and service pay all failed for want of proof or inapplicability, service pay being excluded by the gratuity clause in her contract under section 35(6). Only the certificate of service was granted under section 51(1), and the claim was otherwise dismissed with no orders as to costs.

Key legal issues

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01

Whether sending an employee on unpaid leave amounts to termination of employment

Holding

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

Reasoning

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.

p. 4
02

Whether the claimant signed the unpaid leave letter under duress

Holding

The allegation of duress was unsubstantiated as no particulars were furnished

Reasoning

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.

p. 4
03

Entitlement to service pay where the employee is entitled to gratuity

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The claim is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Employment Actsection 43(1)
  • Employment Actsection 35(5)
  • Employment Actsection 35(6)
  • Employment Actsection 51(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (6)

  • Thomas Silas Nzivo vs Bamburi Cement Limited
    (2014) eKLR
  • Paul Mwaura Mbugua vs Kagwe Tea Factory Ltd & another
    (2012) eKLR
  • Hussein t/a MN Transporters vs Agro-chemical & Food Co. Limited
    (2002) eKLR
  • Wenslaus Oduki Odinga vs Kenyatta National Hospital Board
    (2013) eKLR
  • Hema Hospital vs Wilson Makongo Marwa
    (2015) eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (claim for unfair termination and employment benefits)

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, "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.