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ELRCPartially AllowedNot stated in judgment· [2022] KEELRC 1269 (KLR)

Wakesho v Senaca Enterprises Ltd & another (Cause 762 of 2015) [2022] KEELRC 1269 (KLR)

Employment and Labour Relations Court
22 July 2022
BOBYRAM ONGAYA
1,228 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court ruled an employee was unfairly sacked for demanding her service pay and awarded her Kshs. 213,200 plus costs.

What this practically means

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Executive summary

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The claimant, employed from 2004 as Secretary and Office Administrator earning Kshs. 13,000.00 monthly, sued the respondents for unlawful and discriminative termination following an incident on 12.03.2014. She testified that when asked to register for NSSF, she raised a grievance about unpaid service pay for her 10 years of service, whereupon the Managing Director (RW) told her to hand over to one Linnet and never return. RW denied terminating her, asserting she simply left after the NSSF registration directive and never reported back. The Court found the contract terminated on 12.03.2014 when RW told the claimant to go away after she asked for her service pay. Applying Section 46(h) of the Employment Act, the Court held that an employee's initiation of a complaint against the employer is not a fair reason for dismissal unless the complaint is irresponsible and unfounded; the claimant's grievance was responsible and well-founded, so the termination was for an unlawful and unfair reason, failing the tests in Sections 43 and 45. On remedies, the Court awarded Kshs. 5,200.00 for 12 days worked in March 2014, Kshs. 13,000.00 in lieu of annual leave, Kshs. 65,000.00 service pay for 10 years under Section 35(5), Kshs. 13,000.00 in lieu of notice, and Kshs. 117,000.00 being 9 months' compensation under Section 49, the belated offer to resume duty at conciliation being the only mitigating factor. Judgment was entered for the claimant for Kshs. 213,200.00 payable by 01.10.2022, failing which interest accrues at Court rates, plus costs of the suit.

Key legal issues

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01

Whether the termination was for a fair and valid reason

Holding

The termination was based on the claimant's legitimate grievance about service pay for 10 years and was unlawful and unfair

Reasoning

The claimant was asked to register for NSSF, raised a grievance about 10 years of unpaid service pay, and was then told to hand over and never return. Section 46(h) protects employees from dismissal for raising complaints. The grievance was responsible and well-founded, so the termination failed Section 43 and Section 45 requirements.

p. 2
02

Entitlement to service pay for 10 years

Holding

Service pay of Kshs. 65,000.00 awarded, being about half monthly salary for each year served under Section 35(5)

Reasoning

The claimant served 10 years, earned Kshs. 13,000.00 monthly and was never registered for NSSF. Half a month's salary per year of service was found reasonable service pay under Section 35(5) of the Employment Act.

p. 3
03

Compensation for unfair termination under Section 49

Holding

Nine months' gross salary (Kshs. 117,000.00) awarded as compensation

Reasoning

The Court weighed Section 49 factors: 10 years of clean service, desire to continue employment, and the valid grievance. The belated offer to resume duty at the conciliation meeting was the only mitigating factor, but resumption would not have resolved the grievance or changed the parties' positions.

p. 3

Legal principles established

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  • An employee's initiation or proposed initiation of a complaint against the employer is not a fair reason for dismissal unless the complaint is shown to be irresponsible and without foundation

Court orders

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  1. 1.The respondents to pay the claimant a sum of Kshs. 213,200.00 by 01.10.2022 failing interest to be payable thereon at Court rates from the date of the Judgment until full payment
  2. 2.The respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment ActSection 46(h)
  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 35
  • Employment ActSection 35(5)
  • Employment ActSection 49
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wakesho v Senaca Enterprises Ltd & another (Cause 762 of 2015) [2022] KEELRC 1269 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1269/eng@2022-07-22

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