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ELRCPartially AllowedCause No 1049 of 2017· [2022] KEELRC 1028 (KLR)

Wanjiru Munyao v New Wide Garments Kenya Epz Limited & another [2022] KEELRC 1028 (KLR)

Employment and Labour Relations Court
21 January 2022
2,783 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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Kenyan employers cannot simply dismiss an employee for absconding; they must first try to contact the worker and give them a chance to explain.

What this practically means

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Executive summary

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The claimant, employed initially as a checker by the 1st respondent and later transferred to the 2nd respondent, sued claiming her services were verbally terminated on 16th June 2016 by the 2nd respondent's manager after a quarrel, without notice or a hearing. The respondents contended she absconded duty from 13th June 2016 and was dismissed on 17th June 2016, and that her absence made a hearing impractical. The court first rejected the respondents' argument that dismissal was unproved, since they had themselves produced a letter of summary dismissal. The court found that even if the claimant absconded, the 2nd respondent made no effort to contact her through known channels or issue a show cause letter as required under section 41(2) of the Employment Act; following Mary Mumbi Kariuki and Joseph Nzioka, the dismissal was held unfair and unlawful. On remedies, the claimant received a declaration of unfair termination, compensatory damages of five months' gross salary (Kshs 96,579.20), one month's notice pay of Kshs 19,319.44 (the contractual 14-day notice being superseded by section 35(1)(c)), costs, and interest from the date of judgment. Claims for unpaid leave, public holidays and rest days, and for days worked in June 2016, were declined for lack of evidence. The claim against the 1st respondent was dismissed in its entirety, service being continuous but vesting in the 2nd respondent at dismissal. Judgment was delivered on 21st January 2022 by Stella Rutto, J.

Key legal issues

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01

Whether the claimant was unfairly terminated or absconded duty

Holding

Even if the employee absconded, the employer's failure to contact her or afford a hearing under section 41 rendered the dismissal unfair and unlawful

Reasoning

The 2nd respondent dismissed the claimant on grounds of abscondment but produced no evidence that it attempted to reach her or establish the reason for her absence. Having established channels of communication over a considerable employment period, prudence required contact and a show cause. Section 41(2) obliged the employer to hear and consider representations even in abscondment cases. Failure faulted the disciplinary process.

p. 3
02

Whether the claimant proved she was dismissed

Holding

The respondents' own documentary evidence (letter of summary dismissal) confirmed the dismissal, rendering the argument idle

Reasoning

The respondents argued under section 47(5) that the claimant failed to prove dismissal, yet they themselves attached and produced a letter of summary dismissal dated 17th June 2016. The court found no contest on the fact of dismissal and dismissed the objection as idle.

p. 2
03

Entitlement to notice pay

Holding

Claimant entitled to one month's salary in lieu of notice under section 35(1)(c) notwithstanding a 14-day contractual notice clause

Reasoning

Summary dismissal without notice is prohibited under section 44(2), and section 35(1)(c) imposes a mandatory one month notice for monthly-salaried employees. The contractual 14-day notice was superseded by the statute. Award of Kshs 19,319.44 made.

p. 3
04

Liability of the 1st respondent

Holding

The claim against the 1st respondent was dismissed as the claimant was employed by the 2nd respondent at dismissal

Reasoning

Although the claimant first worked for the 1st respondent, her services had been transferred to the 2nd respondent, in whose employment she stood at the point of termination. The 1st respondent was therefore not liable, though service was treated as continuous for compensation purposes.

p. 4

Legal principles established

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  • An employer alleging abscondment must make reasonable attempts to contact the employee and issue a show cause letter before summary dismissal
  • Statutory notice under section 35(1)(c) supersedes a shorter contractual notice period
  • Service is deemed continuous across closely connected respondent companies following a transfer of service

Court orders

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  1. 1.A declaration that the claimant's termination was unfair and unlawful
  2. 2.Award of compensatory damages of Kshs 96,579.20 equivalent to 5 months gross salary against the 2nd respondent
  3. 3.One month's salary in lieu of notice of Kshs 19,319.44
  4. 4.Total award of Kshs 115,916.64
  5. 5.Costs of the suit to the claimant
  6. 6.Interest on the total award at court rates from the date of judgment till payment in full
  7. 7.Dismissal of the claim against the 1st respondent in its entirety
  8. 8.Certificate of service to issue to the claimant pursuant to section 51(1) of the Employment Act

Authorities

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Legislation

  • Employment Actsections 41, 41(2), 43, 44(2), 44(4)(a), 45, 47(5), 35(1)(c), 51(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (14)

  • Walter Anuro vs Teachers Service Commission
    [2013] eKLR
  • David Gichana Omuya vs Mombasa Maize Millers Limited
    [2014] eKLR
  • Samuel Muchiri Gikonyo vs Henkel Chemicals (EA) Ltd
    [2014] eKLR
  • Peter Apolo Ochieng vs Amedo Centre Kenya Limited
    [2016] eKLR
  • David Njoroge Muiru vs Elsa Limited
    (2014) eKLR
  • Peter Onyango Nyabongo vs Citadelle Security Limited
    [2015] eKLR
  • Chrispine Onguso Okinyi vs Devki Steel Mills Limited
    [2018 eKLR
  • Rusiah Misesi vs Egale Heights Afrika (K)
    (2019) eKLR
  • Nicholus Kipkemoi Korir vs Hatari Security Guards Limited
    (2016) eKLR
  • Jackson Butiya vs Easter Produce Kenya Limited
    IC Cause No. 335 of 2011
  • Matthew Lucy Cherusa vs Poverelle Sisters of Belgano
    (2013) eKLR
  • Consolata Kemunto Aming’a vs Milimani High School
    (2019) eKLR
  • Mary Mumbi Kariuki vs. Director, Pamoja Women Development Programme
    [2015] eKLR
  • Joseph Nzioka vs. Smart Coating Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (unfair termination claim under sections 41, 43 and 45)

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, "Wanjiru Munyao v New Wide Garments Kenya Epz Limited & another [2022] KEELRC 1028 (KLR)", Case Analysis (2022). Cause No 1049 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1028/eng@2022-01-21

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