Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim dated 19th July 2017 (as amended 23rd January 2020)· [2021] KEELRC 1684 (KLR)

John Charo Ngumbao v Leisure Lodge Limited t/a Leisure Lodge Resort [2021] KEELRC 1684 (KLR)

Employment and Labour Relations Court
27 May 2021
1,639 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Mombasa court ruled Leisure Lodge Resort unfairly fired its executive chef, awarding him Kshs. 848,750 plus interest and costs.

What this practically means

#

Executive summary

#
This was a first-instance employment dispute before the Employment and Labour Relations Court at Mombasa, in which John Charo Ngumbao, formerly Executive Chef at Leisure Lodge Resort, challenged the termination of his employment on 22nd November 2016 on grounds of gross negligence and insubordination. He sought salary arrears, unpaid leave, twelve months' compensation and one month's notice pay. The Respondent maintained that the termination was justified, that the Claimant had refused to participate in disciplinary proceedings, and that notice pay had been made. The Court identified two issues: the lawfulness and fairness of the termination and entitlement to remedies. It found the Respondent's case internally contradictory on whether the Claimant received and answered the show cause letter, and held that the allegations of insubordination were not proved. Applying Section 41 of the Employment Act and following Janet Nyandiko v Kenya Commercial Bank Limited, the Court found the Claimant was not invited to a disciplinary hearing and his response to the show cause was not considered; the termination violated procedural fairness and lacked a valid reason. The Claimant, a star performer by prior commendations, was awarded six months' salary in compensation plus one month's notice pay, totaling Kshs. 848,750, with interest from judgment. The salary arrears claim was held statute barred under Section 90 of the Employment Act, and the unpaid leave claim was disallowed as agreed. Judgment was entered for the Claimant with interest, a certificate of service and costs.

Key legal issues

#
01

Whether the termination was lawful and fair

Holding

The termination was substantively and procedurally unfair; the allegations of insubordination were not proved, and the Claimant was not taken through the due process required by Section 41 of the Employment Act

Reasoning

The Respondent's case was internally contradictory: it pleaded both that the Claimant declined the show cause letter and that he responded to it unsatisfactorily. The Respondent's witness was not present at the relevant events. The Claimant's response to the show cause letter was not considered, and he was not invited to a disciplinary hearing. His prior commendations showed him to be a star performer, making the incident isolated. The Respondent, in haste, violated procedural fairness and failed to establish a valid reason.

p. 3
02

Whether the Claimant is entitled to compensation

Holding

The Claimant is entitled to compensation for unlawful and unfair termination, awarded at six months' salary

Reasoning

Having found both procedural and substantive unfairness, the Court awarded six months' salary, considering the Claimant's length of service (2013 to 2016) and the Respondent's unlawful conduct in terminating the employment.

p. 3
03

Whether the claim for salary arrears is time-barred

Holding

The salary arrears claim falls within 'continuing injury' under Section 90 of the Employment Act and should have been brought within 12 months; it is statute barred

Reasoning

The Court characterized the salary arrears claim as a continuing injury under Section 90 of the Employment Act, which imposes a 12-month limitation period. Since the Memorandum of Claim was filed in 2017 for arrears accruing in 2015, the claim was filed out of time and is statute barred.

p. 3
04

Whether the Claimant is entitled to unpaid leave

Holding

The claim for unpaid leave is disallowed as any unpaid leave was agreed between the parties

Reasoning

Letters filed by the Claimant showed that any unpaid leave was preceded by discussion and agreement with the Respondent. The Claimant never objected at the time he proceeded on unpaid leave and cannot raise the objection now. The claim was therefore disallowed.

p. 3
05

Notice pay

Holding

One month's salary in lieu of notice is payable as admitted by the Respondent's termination letter

Reasoning

The termination letter dated 22nd November 2016 indicated the Claimant was entitled to one month's salary in lieu of notice. The claim was therefore admitted and payable in the sum of Kshs. 121,250.

p. 3

Legal principles established

#
  • For termination on account of negligence or misconduct to be justifiable and fair, the employer must allow the employee an opportunity to respond to the specific charges at the shop floor, as required by Section 41 of the Employment Act

Court orders

#
  1. 1.6 months' salary in compensation of Kshs. 727,500
  2. 2.1 month's salary in lieu of notice of Kshs. 121,250
  3. 3.Total judgment of Kshs. 848,750 with interest at court rates from the date of judgment until payment in full
  4. 4.Certificate of service to be issued to the Claimant
  5. 5.Costs of the case to the Claimant

Authorities

#

Legislation

  • Employment ActSection 41
  • Employment ActSection 90

Cases cited (1)

  • Janet Nyandiko v Kenya Commercial Bank Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "John Charo Ngumbao v Leisure Lodge Limited t/a Leisure Lodge Resort [2021] KEELRC 1684 (KLR)", Case Analysis (2021). Memorandum of Claim dated 19th July 2017 (as amended 23rd January 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1684/eng@2021-05-27

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