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ELRCDismissedCivil Appeal No 17 of 2020· [2021] KEELRC 1172 (KLR)

Professional Clean Care Limited v Danson Mwendwa Muthoka [2021] KEELRC 1172 (KLR)

Employment and Labour Relations Court
29 July 2021
2,354 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 confirmed an award against an employer that fired a worker without a hearing or evidence, dismissing the company's appeal with costs.

What this practically means

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Executive summary

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The Appellant, Professional Cleancare Ltd, appealed against a judgment of Hon Lesootia A. Saitabu, PM, delivered on 18th June 2020, which declared the Respondent's employment unfairly terminated and awarded terminal dues of Kshs. 344,050, a certificate of service, costs and interest. The Appellant raised fourteen grounds, condensed into seven issues: the trial court's failure to consider its submissions, compensation for unfair termination, house allowance, notice pay, leave pay, the level of the award, and limitation under Section 90 of the Employment Act. On the first issue, Linnet Ndolo J held that as a first appellate court she could reconsider the Appellant's submissions and fill any gaps, so the proceedings were not a nullity and retrial was unnecessary. On termination, the Court noted the dismissal letter gave no reason beyond that services were no longer required, while the employer pleaded poor performance without any disciplinary process - an admission made by its General Manager - offending Sections 41 and 45 of the Employment Act; the finding of unfair termination was confirmed. On house allowance, the pay slips showed no separate provision and no evidence of a consolidated salary, so the award stood. Notice pay and leave pay awards were confirmed because the employer produced no documentary evidence of payment or employment records, being the custodian of such records under Sections 10 and 74. The Court declined to interfere with the discretionary award absent misdirection, and found the limitation ground unargued as no time-barred heads were identified. The appeal was dismissed with costs to the Respondent in both courts.

Key legal issues

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01

Effect of the trial court's failure to consider the Appellant's submissions

Holding

Not a nullity; the first appellate court can consider the submissions and fill any gaps

Reasoning

As a first appellate court, the judge had latitude to re-evaluate the whole record, including the Appellant's submissions filed at the lower court. Failure by the trial court to consider submissions for whatever reason does not render the proceedings a nullity, so retrial was unnecessary.

p. 2
02

Validity of the termination

Holding

Termination was unlawful and unfair; the trial court's finding is confirmed

Reasoning

The termination letter stated services were no longer required, while the employer pleaded poor performance. The employer's General Manager admitted no disciplinary process was undertaken. Poor performance termination requires notice of shortcomings and opportunity to improve; none occurred, offending Sections 41 and 45 of the Employment Act.

p. 3
03

House allowance

Holding

Award confirmed; pay slips showed basic salary equal to gross salary with no house allowance provision, and no evidence of consolidation

Reasoning

Section 31(1) and (2) of the Employment Act permits consolidation of house allowance into basic salary, but the Respondent's pay slips showed basic and gross salary both at Kshs. 13,000 with no house allowance line, and the salary review letter did not alter this. Consolidation was therefore not proved.

p. 4
04

Notice pay and leave pay

Holding

Both awards confirmed; the employer failed to produce evidence of payment of notice or employment records to rebut the leave claim

Reasoning

The termination letter promised notice pay but no documentary evidence of payment was adduced. On leave, the employer as custodian of records under Sections 10 and 74 of the Employment Act was duty-bound to produce records; absent them, the Magistrate could only find for the Respondent.

p. 4
05

Limitation under Section 90 of the Employment Act

Holding

Ground fails; the Appellant never specified which awards were time barred

Reasoning

The Appellant made general statements on limitation without identifying the time-barred components of the award, leaving the Court without a basis for a finding. The ground was therefore unargued and failed.

p. 5

Legal principles established

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  • On a first appeal the court must re-evaluate and re-analyse the evidence and arrive at its own conclusions
  • The procedure for terminating employment on grounds of poor performance requires the employee to be made aware of shortcomings, allowed time to improve, and consulted on appraisals
  • An appellate court will not interfere with a discretionary award absent evidence of misdirection
  • The employer, as custodian of employment records, bears the duty to produce records to counter an employee's claim
  • A consolidated salary excludes the statutory house allowance entitlement under Section 31 of the Employment Act, but consolidation must be evidenced

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs to the Respondent in this Court and in the court below
  3. 3.The trial court's award (declaration of unfair termination, terminal dues of Kshs. 344,050, certificate of service, costs plus interest) is confirmed

Authorities

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Legislation

  • Employment ActSection 44(4)(c)
  • Employment ActSection 41
  • Employment ActSection 45
  • Employment ActSection 31(1) and (2)
  • Employment ActSection 49
  • Employment ActSection 90
  • Employment ActSections 10 and 74
  • Employment and Labour Relations Court ActNot specified

Cases cited (6)

  • Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co Advocates
    [2013] eKLR
  • Maghanga Newton Raphael v Panal Freighters Limited
    [2021] eKLR
  • Jane Wairimu Machira v Mugo Waweru and Associates
    [2012] eKLR
  • Joshua Kabaka v Tandu Alarms Systems Limited
    [2019] eKLR
  • Nathan Chesang Moson v Grand Creek Llc & another
    [2020] eKLR
  • Mbogo and Another v Shah
    [1968] EA 93
On appeal from
Magistrates' Court (Employment and Labour Relations jurisdiction)
Not stated in the judgment
Jurisdiction invoked
First appeal from the trial Magistrate's judgment in an employment claim; special jurisdiction under the Employment and Labour Relations Court Act (invoked in the grounds of appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Professional Clean Care Limited v Danson Mwendwa Muthoka [2021] KEELRC 1172 (KLR)", Case Analysis (2021). Civil Appeal No 17 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1172/eng@2021-07-29

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