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ELRCPartially AllowedNot stated in the judgment as provided· [2021] KEELRC 2029 (KLR)

Rita Achieng Onunga v Kibos Sugar & another [2021] KEELRC 2029 (KLR)

Employment and Labour Relations Court
10 March 2021
RSRadido Stephen
1,017 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 ruled that suspending an employee without pay, indefinitely, and without contractual authority is unlawful and must be compensated.

What this practically means

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Executive summary

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The Claimant, an employee of Kibos Sugar & Allied Industries Ltd, applied for annual leave on 26 July 2013 and, while on leave, was served with a suspension letter dated 6 August 2013 to facilitate police investigations into allegations of sugar theft. No further communication followed; her trade union's letters and a formal demand of 6 July 2016 went unanswered. She produced proceedings in Kisumu Criminal Case No. 423 of 2013 showing another person had been charged with the theft. The Respondent's witness admitted sending a dismissal letter dated 7 March 2014 by post, which the Claimant denied receiving. The issues framed were whether the termination was wrongful, unfair and unlawful, entitlement to reliefs, and costs. The Court held that the suspension, being without pay, indefinite, and lacking contractual or legal authority, was unlawful, applying the common law rule in McKenzie v Smith and McClory v Post Office. On termination, the Court noted there was no evidence the Claimant was invited to a disciplinary hearing or afforded representations as required by section 41 of the Employment Act, 2007, but declined a definitive finding on unfair termination because the pleaded cause of action was unlawful suspension only; it nonetheless ordered payment of the promised one month's salary in lieu of notice. Unpleaded reliefs introduced through submissions, including a claim for general damages, were rejected. The Court declared the suspension unlawful, awarded Kshs 105,448/- as salaries during suspension and Kshs 12,000/- in lieu of notice (total Kshs 117,448/-), and awarded the Claimant costs. Judgment was delivered in Kisumu on 10 March 2021 by Radido Stephen, Judge.

Key legal issues

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01

Whether the indefinite suspension of the Claimant was lawful

Holding

The suspension was unlawful because it lacked contractual or legal authority, was without pay, and was indefinite

Reasoning

The suspension letter of 6 August 2013 did not set out any contractual or legal authority for the suspension. At common law, suspension without pay without contractual authority is unlawful. The suspension was also for an indefinite period, and a person other than the Claimant was apparently charged with the theft. The Court therefore found the suspension unlawful.

p. 2
02

Whether there was unfair termination of employment

Holding

No definitive finding made because unfair termination was not pleaded; however, the Respondent was held to its promise to pay one month's salary in lieu of notice

Reasoning

The pleaded cause of action was unlawful suspension, not unfair termination. Although section 41 of the Employment Act requires an opportunity to make representations before dismissal and no evidence of a disciplinary hearing invitation was produced, the Court declined to make a definitive finding on the unpleaded claim, confining itself to enforcing the notice pay promised in the dismissal letter.

p. 2
03

Whether unpleaded reliefs and evidence introduced through submissions could be considered

Holding

The Court refused to consider reliefs not pleaded and a collective bargaining agreement introduced irregularly through submissions

Reasoning

The Claimant sought to introduce reliefs through submissions that had not been pleaded; the Court declined to consider them. Similarly, a copy of a collective bargaining agreement sneaked into the record through submissions was held to be irregular and was disregarded, leaving the suspension letter without demonstrated contractual authority.

p. 2

Legal principles established

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  • Suspension without pay from work without contractual authority is unlawful and in breach of contract

Court orders

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  1. 1.Declaration that the suspension of the Claimant was unlawful
  2. 2.Award of salaries during suspension of Kshs 105,448/-
  3. 3.Award of salary in lieu of notice of Kshs 12,000/- (total Kshs 117,448/-)
  4. 4.Claimant to have costs

Authorities

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Legislation

  • Employment ActSection 41

Cases cited (2)

  • McKenzie v Smith
    (1976) IRLR 345
  • McClory v Post Office
    (1993) IRLR 159
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (matter concerning suspension and dismissal from employment)

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, "Rita Achieng Onunga v Kibos Sugar & another [2021] KEELRC 2029 (KLR)", Case Analysis (2021). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2029/eng@2021-03-10

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