Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment (ELRC suit filed on 5/1/2016)· [2021] KEELRC 1722 (KLR)

Jeska Demesi Minyande v Jane Waithika t/a Six Wings Bar & Restaurant [2021] KEELRC 1722 (KLR)

Employment and Labour Relations Court
20 May 2021
MNMathews N. Nduma
1,165 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded a cleaner over Kshs. 253,000 in unpaid benefits because her employer never showed up to challenge the claims.

What this practically means

#

Executive summary

#
The claimant, employed as a cleaner at the respondent's Ngong Road Branch from 3/7/2014 without a written contract, sued for unfair termination and terminal benefits. She worked seven days a week, including Sundays and public holidays, for one year and four months, earning Kshs. 7,600 per month. After a change of management in early 2015, the respondent stopped paying her salary for August to November 2015, and when she demanded payment her employment was terminated following the closure of the branch. She reported the dispute to the Labour officer and issued a demand letter before filing suit on 5/1/2016. The respondent filed a statement of defence alleging she was a casual employee but failed to file affidavit evidence, attend court for cross-examination, or appear at the subsequent mention despite due service. The court directed the matter to proceed to judgment in default. The court found the claimant had discharged the burden of proof under sections 107 and 108 of the Evidence Act on a balance of probabilities and awarded salary arrears, one month's notice pay, unpaid leave, service pay, house allowance, public holiday pay and overtime totalling Kshs. 253,725.16, with interest from the date of judgment and costs to follow the event. On the unfair termination claim, the court accepted that although the branch closure was due to financial difficulties, the respondent should have followed the retrenchment procedure under section 40 of the Employment Act; however, it declined compensation for the unprocedural termination, holding the terminal benefits sufficient mitigation for a claimant of one year and four months' service in an undefended claim.

Key legal issues

#
01

Proof of monetary employment claims in an undefended suit

Holding

All the monetary claims (salary arrears, notice pay, leave, service pay, house allowance, public holidays and overtime) were proved on a balance of probabilities since the respondent filed no rebuttal evidence and did not attend court

Reasoning

The respondent was duly served but neither complied with the directions to file evidence nor appeared for cross-examination. The claimant's affidavit evidence therefore stood uncontradicted. Applying sections 107 and 108 of the Evidence Act, the court found the claimant had proved employment for one year and four months at Kshs. 7,600 per month without house allowance, leave, or payment for public holidays and overtime, and directed payment of all items claimed.

p. 2
02

Fairness of termination on closure of the branch

Holding

Although the closure was due to genuine financial difficulties, the respondent failed to follow the retrenchment procedure under section 40 of the Employment Act, making the termination unprocedural; however no compensation was awarded as the terminal benefits were deemed sufficient mitigation

Reasoning

The claimant did not dispute that the Ngong Road Branch closed due to financial difficulties, but maintained that the statutory retrenchment procedure had to be followed. The court agreed the procedure was unfair. Nevertheless, considering the circumstances and that the claim was undefended, and given the claimant's short service of one year and four months, the court held the terminal benefits adequately mitigated the unfair procedure and declined to order additional compensation.

p. 2

Legal principles established

#
  • A party who proves uncontradicted claims on affidavit evidence discharges the burden of proof under sections 107 and 108 of the Evidence Act on a balance of probabilities
  • An employer closing a branch for operational reasons must still follow the retrenchment procedure under section 40 of the Employment Act

Court orders

#
  1. 1.Judgment entered for the claimant against the respondent for terminal benefits totalling Kshs. 253,725.16, comprising salary arrears Kshs. 30,000, one month notice Kshs. 7,600, unpaid leave days Kshs. 6,138.51, unpaid service pay Kshs. 4,384.65, unpaid house allowance Kshs. 34,155, unpaid public holiday pay Kshs. 10,542 and unpaid overtime Kshs. 190,905
  2. 2.The award to attract interest from the date of judgment until payment in full
  3. 3.Costs to follow the event

Authorities

#

Legislation

  • Employment ActSection 40
  • Evidence Act (Cap 80, Laws of Kenya)Sections 107 and 108
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure Act (chapter 21, Laws of Kenya)Section 18
  • Constitution of KenyaArticles 159(2)(d) and 48
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jeska Demesi Minyande v Jane Waithika t/a Six Wings Bar & Restaurant [2021] KEELRC 1722 (KLR)", Case Analysis (2021). Not stated in the judgment (ELRC suit filed on 5/1/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1722/eng@2021-05-20

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