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 AllowedCause No 206 of 2015· [2021] KEELRC 2416 (KLR)

Kungu v B.O.M Laikipia West Districtpublic Hospital (Cause 206 of 2015) [2021] KEELRC 2416 (KLR)

Employment and Labour Relations Court
4 May 2021
HWHellen Wasilwa
1,052 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The claimant, employed by the respondent as a night watchman from 27th January 2005 at a monthly salary of Kshs. 3,500, claimed unlawful and unfair termination and unpaid terminal dues. He averred that on 14th and 15th June 2012 he was arrested for allegedly stealing a Yamaha motor cycle, was released on bond on 29th June 2012, and on returning to work on 9th July 2012 was verbally told his services were no longer required, without a termination letter or due process. He was acquitted on 22nd October 2013. He sought notice pay, service pay, leave pay, 12 months' compensation, overtime, underpaid wages and costs under the Employment Act and the Employment and Labour Relations Court Act. The respondent never entered appearance or filed a defence despite service, and the claim proceeded by formal proof on 24th October 2019, at which the claimant adopted his witness statement and documents. The court found, applying section 45(2) of the Employment Act, that the employer had adduced no evidence of a valid reason or fair procedure and the termination was unfair. Judgment was entered for the claimant awarding one month's notice pay (Kshs. 8,873), 8 months' compensation (Kshs. 70,984), underpayment of wages limited to 3 years as the rest was time barred (Kshs. 75,392), overtime for 3 years (Kshs. 208,644) and service pay for 7 years (Kshs. 31,055.5), totalling Kshs. 394,949 less statutory deductions, plus costs and interest from the date of judgment.

Key legal issues

#
01

Whether the claimant's termination was unfair

Holding

The termination was unfair under section 45(2) of the Employment Act as the respondent adduced no evidence of a valid reason or fair procedure

Reasoning

The claim proceeded ex parte as the respondent neither entered appearance nor filed a defence. The claimant gave unchallenged evidence at formal proof, adopting his witness statement and documents. There was no evidence from the respondent explaining why or how the claimant was terminated, so the employer failed to discharge its burden under section 45(2) to prove a valid and fair reason and fair procedure.

p. 3
02

What quantum of reliefs the claimant was entitled to

Holding

The court awarded notice pay, 8 months' compensation, service pay for 7 years, 3 years' underpayment of wages and 3 years' overtime, less statutory deductions

Reasoning

The court granted the reliefs proved on the evidence but limited underpayment and overtime claims to 3 years as the balance was time barred, and reduced the claimed 12 months' compensation to 8 months. It awarded service pay computed at 15 days' pay per year for the 7 years worked.

p. 3

Legal principles established

#
  • A termination of employment is unfair where the employer fails to prove a valid and fair reason and a fair procedure
  • In an uncontroverted claim, the claimant must still prove his case on the evidence at formal proof

Court orders

#
  1. 1.1 month's salary in lieu of notice of Kshs. 8,873
  2. 2.8 months' compensation for unfair termination totalling Kshs. 70,984
  3. 3.Underpayment of wages for 3 years totalling Kshs. 75,392 (the rest being time barred)
  4. 4.Overtime pay at 4 hours per day for 3 years totalling Kshs. 208,644
  5. 5.Service pay for 7 years of Kshs. 31,055.5
  6. 6.Total award of Kshs. 394,949 less statutory deductions
  7. 7.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

#

Legislation

  • Employment Actsections 28(1)(a), 35, 35(5), 36, 41, 45(2), 45(4)(b), 49(1)(a), 49(1)(c), 50
  • Employment and Labour Relations Court Actsections 12(3)(viii), 12(4)
Jurisdiction invoked
Sections 12(3)(viii) and 12(4) of the Employment and Labour Relations Court Act; Employment Act 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kungu v B.O.M Laikipia West Districtpublic Hospital (Cause 206 of 2015) [2021] KEELRC 2416 (KLR)", Case Analysis (2021). Cause No 206 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2416/eng@2021-05-04

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