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Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 435 of 2018· [2021] KEELRC 1018 (KLR)

Chimera Chimoyo Alfan v Steel Makers Limited [2021] KEELRC 1018 (KLR)

Employment and Labour Relations Court
16 September 2021
844 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that shows up to court without evidence automatically loses an unfair termination case, but employees must file leave pay claims within twelve months.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a gas cutter from March 2009 at a monthly salary of Kshs.24,726, claimed that on 11th April 2017 he was told by his Head of Department to leave the premises and wait to be recalled, but was never recalled or contacted again. He sued for notice pay, house allowance, leave allowance, severance pay, twelve months' compensation for unfair termination, a certificate of service, costs and interest. The Claimant testified; the Respondent called no witnesses. Applying Section 43(1) of the Employment Act, which requires the employer to prove reasons for termination, the court held that the claim of unfair termination was unchallenged and succeeded, awarding eight months' salary in compensation taking into account length of service and the Respondent's unlawful conduct, plus one month's salary in lieu of notice. The house allowance claim was disallowed because the Claimant admitted being paid a daily wage ordinarily inclusive of house allowance. The leave pay claim was held time barred: failure to grant leave is a continuing injury under Section 90 of the Employment Act, requiring suit within twelve months of cessation, and the claim filed on 22nd June 2018 fell outside that period. Severance pay was refused as redundancy was neither pleaded nor established. Judgment was entered for the Claimant in the sum of Kshs.222,534, with interest at court rates from the date of judgment until payment in full, a certificate of service, and costs of the case.

Key legal issues

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01

Unfair termination

Holding

The termination was unfair as the Respondent did not call witnesses or prove reasons for termination

Reasoning

Section 43(1) of the Employment Act places the burden on the employer to prove reasons for termination. The Respondent chose not to call any witnesses and only introduced contentious matters of fact in final submissions. The Claimant's claim of unfair termination therefore went unchallenged and succeeded, warranting compensation under Section 49 considering length of service and the manner of termination.

p. 1
02

Limitation of leave pay claim

Holding

The leave pay claim is time barred under Section 90 of the Employment Act

Reasoning

Failure to grant annual leave is a continuing injury, attracting the twelve-month limitation period from cessation. Reckoning from termination on 11th April 2017, the claim should have been filed by 10th April 2018; the Memorandum of Claim was filed on 22nd June 2018, placing it outside the statutory period, which admits no extension.

p. 2
03

House allowance

Holding

Claim disallowed since the daily wage was ordinarily inclusive of house allowance

Reasoning

The Claimant's own testimony that he was paid a daily wage, which ordinarily includes a house allowance component, defeated the claim for house allowance. No evidential basis was laid for the claim and it was disallowed.

p. 2
04

Severance pay

Holding

Claim for severance pay fails as redundancy was not pleaded

Reasoning

Severance pay is payable only in redundancy situations. The Claimant did not plead redundancy, and no basis was laid for the severance claim; it was therefore rejected.

p. 2

Legal principles established

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  • Where the employer fails to call evidence to prove the reasons for termination, the termination is deemed unfair
  • Section 90 of the Employment Act leaves no room for extension of time
  • Failure to grant annual leave is a continuing injury, and a claim must be brought within twelve months of cessation

Court orders

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  1. 1.Judgment entered in favour of the Claimant for 8 months' salary in compensation (Kshs.197,808) and 1 month's salary in lieu of notice (Kshs.24,726), total Kshs.222,534
  2. 2.Interest at court rates from the date of judgment until payment in full
  3. 3.Issuance of a certificate of service to the Claimant
  4. 4.Costs of the case to the Claimant

Authorities

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Legislation

  • Employment ActSection 43(1)
  • Employment ActSection 45
  • Employment ActSection 90
  • Limitation of Actions ActSection 4(1)

Cases cited (1)

  • Maria Machocho v Total Kenya Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (employment contract termination claim)

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, "Chimera Chimoyo Alfan v Steel Makers Limited [2021] KEELRC 1018 (KLR)", Case Analysis (2021). Cause No 435 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1018/eng@2021-09-16

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