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ELRCOtherNot stated in the judgment· [2021] KEELRC 1220 (KLR)

Sahihi Interior Designers Limited v Pauline Maingi [2021] KEELRC 1220 (KLR)

Employment and Labour Relations Court
16 July 2021
2,843 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that dismissed an employee via WhatsApp lost its entire lawsuit and was ordered to pay her Kshs.140,000.

What this practically means

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Executive summary

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The Claimant (employer) sued its former Accounts Assistant, later Accountant, alleging she tendered an unexecuted resignation letter on 6th November 2017, absconded from 7th November 2017, failed to hand over files and documents (some requested by the Kenya Revenue Authority), left an unpaid loan balance of Kshs.24,600 and forced the company to incur recruitment costs. It sought an order for handover, one month's salary in lieu of notice (Kshs.25,000), the loan amount, recruitment costs of Kshs.75,000, general damages, costs and interest. The Respondent denied absconding, asserting she tendered a signed resignation which the Claimant refused to accept, after which the Managing Director dismissed her summarily via the office WhatsApp group. She admitted a Kshs.40,000 loan which had been substantially recovered through salary deductions and counterclaimed for unfair termination, seeking notice pay, compensation and costs. The court framed three issues: whether she absconded or was unfairly dismissed; whether the Claimant was entitled to its prayers; and whether the Respondent was entitled to the counterclaim prayers. Relying on the Managing Director's WhatsApp message wishing her well, the court found she did not abscond but was dismissed. All the Claimant's prayers failed: notice pay, the loan refund, recruitment costs and general damages were refused. On the counterclaim she was awarded one month's notice pay (Kshs.35,000) and three months' salary compensation (Kshs.105,000), totalling Kshs.140,000, with service pay denied as she was an NSSF member. The claim was dismissed with costs to the Respondent, who was also awarded costs on the counterclaim, with interest at court rates from the date of judgment.

Key legal issues

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01

Whether the Respondent absconded duty or was unfairly dismissed

Holding

She was dismissed by the Claimant soon after tendering her resignation; she did not abscond

Reasoning

The Claimant alleged the Respondent absconded after tendering an unexecuted resignation. The Respondent said her signed resignation was refused and she was dismissed via the office WhatsApp group. The screenshot of 10th November 2017 from the Managing Director's account wished her well in future endeavours, inconsistent with absconding. The Claimant's own witness statement showed the suit arose from suspicion that she had reported tax irregularities to KRA.

p. 4
02

Whether the Claimant was entitled to the prayers sought (notice pay, loan refund, recruitment costs, general damages)

Holding

None of the Claimant's prayers succeeded

Reasoning

The Claimant could not claim notice pay having itself dismissed the Respondent. The loan had been substantially recovered from salary, leaving Kshs.1,000 already paid. Recruitment costs were unexplained as an employee liability, and the Claimant having dismissed the Respondent could not pass them on. General damages had no submissions or proof.

p. 4
03

Whether the Respondent was entitled to the prayers in the counter claim

Holding

Awarded one month's salary in lieu of notice (Kshs.35,000) and three months' salary compensation (Kshs.105,000); service pay denied as she was an NSSF member

Reasoning

Having found the dismissal unfair, the court awarded notice pay and, exercising its discretion under Section 49(4) of the Employment Act having regard to the circumstances of separation, the Claimant's conduct and length of service, three months' salary as compensation. Service pay was excluded by Section 35(6) due to NSSF membership.

p. 4

Legal principles established

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  • Whether an employee absconded or was dismissed may be inferred from the employer's own communications; a Managing Director's farewell message wishing a departing employee well is inconsistent with absconding or dismissal for absconding
  • An employer who terminates employment cannot claim notice pay from the employee
  • An unfairly dismissed employee who was a member of NSSF is not entitled to service pay under Section 35(6) of the Employment Act but may be awarded notice pay and compensation under Section 49

Court orders

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  1. 1.The claim is dismissed with costs to the Respondent
  2. 2.Judgment entered on the counter claim: pay in lieu of notice Kshs.35,000.00 and 3 months' salary compensation Kshs.105,000.00, total award Kshs.140,000.00
  3. 3.The Claimant shall pay the Respondent's costs on the counter claim
  4. 4.Interest shall accrue at court rates from date of judgment
Jurisdiction invoked
Article 162(2) of the Constitution (jurisdiction of the Employment and Labour Relations Court), the claim being instituted by Statement of Claim dated 29th November 2017

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sahihi Interior Designers Limited v Pauline Maingi [2021] KEELRC 1220 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1220/eng@2021-07-16

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