Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment· [2022] KEELRC 1261 (KLR)

Mokaya v Chandaria Food Plus Supermarket Ltd & another (Cause 1858 of 2017) [2022] KEELRC 1261 (KLR)

Employment and Labour Relations Court
24 June 2022
5,431 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

#

A Kenyan employee won unpaid salary arrears but lost her unfair termination and discrimination claims because she sued over the wrong dismissal.

What this practically means

#

Executive summary

#
The Claimant, formerly a Human Resource Assistant with the 1st Respondent, sued over her termination, alleging an unfair disciplinary process, constructive dismissal, discrimination on grounds of pregnancy and motherhood, and breach of her constitutional rights to fair administrative action and non-discrimination. She sought declarations, compensation, notice pay, salary arrears for June to August 2017, general and exemplary damages, interest and costs. The Respondents maintained the terminations were justified and procedurally fair. The court framed four issues: cause of action, fairness of termination, entitlement to reliefs, and costs. It held that pleadings, not evidence, define the cause of action. The Claimant's pleadings addressed only the first termination of 24th July 2017, which was set aside on her successful internal appeal with reinstatement; it could not therefore be re-attacked in the suit. The second termination of 18th October 2017, based on her failure to report to work or attend a disciplinary hearing, was never pleaded, and the court declined to determine its fairness. No breach of fair administrative action or Article 47 was discerned, and the transfer to the Karen branch was consistent with the employer's HR policy, which forms part of the contract. The compensatory relief under section 49(1)(c) of the Employment Act and declarations were refused. However, the claim for salary arrears was held independent of the unfair termination claim, and the Respondents did not deny non-payment; the court awarded Kshs. 99,705 for June to August 2017 with interest from 30th August 2017 and costs of the suit.

Key legal issues

#
01

Whether the pleadings disclosed a cause of action

Holding

No cause of action arose in respect of the first termination, which had been set aside by the employer on the Claimant's successful internal appeal; the second termination of 18th October 2017 was never pleaded.

Reasoning

The court held that pleadings define the issues and confine the evidence. The statement of claim and witness statement addressed only the first termination (24th July 2017), which was reversed on appeal with reinstatement. Facts on the second termination (18th October 2017) appeared nowhere in the pleadings, so no relief could attach to it and the first could not be re-attacked after being set aside internally.

p. 9
02

Whether the termination was procedurally and substantively unfair

Holding

The court declined to determine the fairness of either termination: the first was set aside on appeal and the second was not pleaded.

Reasoning

Since no cause of action lay on the first termination, the court saw no need to examine its procedural and substantive fairness. The second termination, based on the Claimant's failure to report to work, respond to correspondence and attend a disciplinary hearing, was not a subject matter of the suit, so its fairness was also not determined.

p. 10
03

Whether the Claimant's constitutional rights (fair administrative action, non-discrimination on pregnancy) were breached

Holding

No breach was made out; the Claimant was notified, heard through counsel, allowed to appeal and reinstated.

Reasoning

Confining itself to the pleadings and evidence, the court found the Claimant was given a show cause notice, ample time to respond, a hearing attended by her Advocate, a right of appeal which succeeded with reinstatement, and that the transfer was within the HR policy which forms part of the contract. No breach of fair administrative action or Article 47 was discerned.

p. 10
04

Entitlement to salary arrears for June, July and August 2017

Holding

Granted: the Claimant was entitled to the unpaid salary of Kshs. 99,705, this being a claim independent of unfair termination and not denied by the Respondents.

Reasoning

The court found the Claimant ceased to be an employee on the effective date of the second termination, that the Respondents did not deny the non-payment, and that the salary arrears claim stood independently. It awarded Kshs. 99,705 with interest from 30th August 2017 until payment in full.

p. 11

Legal principles established

#
  • Pleadings are the fountain from which a cause of action flows; a party is bound by their pleadings and evidence at variance with them must be disregarded.
  • A termination that has been set aside by the employer's own internal appeal mechanism cannot found a suit for unfair or wrongful termination.
  • A claim for salary arrears is independent of a claim for unfair termination and survives the failure of the termination claim.

Court orders

#
  1. 1.The court is unable to find that there was a termination that was procedurally and substantively unfair.
  2. 2.The Respondent shall pay the Claimant the salary arrears for the months of June, July and August 2017, Kshs. 99,705.
  3. 3.Interest at court rates from 30th August 2017 till full payment.
  4. 4.Costs of this suit.

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
  • Employment ActSections 41, 43(1), 47(5), 49(1)(c)
  • Evidence ActSection 107
  • Fair Administrative Actions ActNot specified
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (11)

  • Walter Ogal Anuro vs Teachers Service Commission
    (2013) eKLR
  • Anthony Mkala Chitavi vs Malindi Water & Sewerage Company Limited
    (2013) eKLR
  • Kenya Petroleum Oil Workers Union vs Kenya Petroleum Refineries Limited
    (2013) eKLR
  • Nazareno Kariuki vs Feed the Children Kenya
    (2013) eKLR
  • Kennedy Maina Mirera vs Barclays Bank of Kenya Limited
    (2018) eKLR
  • Bamburi Cement Limited vs Farid Aboud Mohammed
    (2016) eKLR
  • Henry Ochido vs NGO Co-ordination Board
    (2015) eKLR
  • GMV vs Bank of Africa Kenya Limited
    (2013) eKLR
  • Peterson Guti Ondieki vs Kisii University
    (2020) eKLR
  • Aristide Marage Nyangau v. Lavington Security Ltd
    (2021) eKLR
  • Adetoum Oladegi (NIG) Ltd v. Nigeria Breweries PLC
    S. C. 91/2002
Jurisdiction invoked
Employment and labour relations jurisdiction under Article 162(2) of the Constitution and the Employment Act (implied from the nature of the claim; no express provision cited)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mokaya v Chandaria Food Plus Supermarket Ltd & another (Cause 1858 of 2017) [2022] KEELRC 1261 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1261/eng@2022-06-24

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