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ELRCPartially AllowedNot stated in the judgment (Statement of Claim dated 23rd January 2017)· [2022] KEELRC 1315 (KLR)

Juma v David Engineering Limited (Cause 108 of 2017) [2022] KEELRC 1315 (KLR)

Employment and Labour Relations Court
5 May 2022
5,853 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that blocking an employee from the workplace and issuing a dismissal letter counts as firing — and employers must prove reasons for termination.

What this practically means

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Executive summary

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This was a first-instance unfair termination claim before the Employment and Labour Relations Court at Nairobi, decided by Ocharo Kebira, J on 5th May 2016/2022. The Claimant, employed from 2004 and confirmed permanently in 2011, returned late from leave and from authorised off days, citing the Respondent's failure to pay his salary and his mother's illness. He was denied re-entry to the workplace, referred to the labour office, and handed a summary dismissal letter dated 4th April 2016 (apparently intended for a colleague). The Respondent denied terminating him, asserting he absconded duty. The court framed four issues and held that the Respondent's overt acts - refusing the Claimant entry, referring him to the labour office and issuing the dismissal letter - constituted termination of employment. The Respondent, having denied termination, led no evidence on the reasons for it and did not discharge its burden under sections 43 and 45(2) of the Employment Act; the termination was substantively unfair. No disciplinary process was ever undertaken, rendering it procedurally unfair. The court awarded a declaration of unfair termination, one month's salary in lieu of notice (Kshs. 21,200) under sections 35 and 36, and compensatory damages of seven months' gross salary (Kshs. 148,400) under section 49(1)(c), with interest from filing and costs. The outstanding salary claim failed because the Respondent paid Kshs. 37,016 into the Claimant's account on 1st August 2017 during the pendency of the suit.

Key legal issues

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01

Whether the Claimant's employment was terminated by the Respondent or he absconded duty

Holding

The Respondent terminated the Claimant's employment. Refusing him re-entry to the workplace, referring him to the labour office and handing him a dismissal letter were overt acts signifying an intention to end the employment.

Reasoning

The Respondent told the Claimant his absence was 'beyond it' and referred him to the labour office, an unexplained 'throwing' of the employee to a third party. The Claimant was refused entry by guards. The dismissal letter, though said to be intended for a colleague, was not explained by the Respondent and signified its decision to terminate. Abscondment was never invoked as a ground of termination.

p. 10
02

Whether the termination was substantively fair

Holding

The termination was substantively unfair because the Respondent, having denied terminating the Claimant, led no evidence to prove the reasons for termination as required by sections 43 and 45(2) of the Employment Act.

Reasoning

The Respondent maintained throughout that it never terminated the employment, so it did not discharge the statutory burden of proving the reasons for termination and their validity. Its alternative case of abscondment was never invoked as the ground of termination and therefore could not be considered. The termination thus failed the substantive fairness test under sections 43 and 45.

p. 10
03

Whether the termination was procedurally fair

Holding

The termination was procedurally unfair: the Claimant was never subjected to any disciplinary proceedings nor accorded an opportunity to defend himself.

Reasoning

Section 41 of the Employment Act requires the employer to inform the employee of the charges, allow preparation and a hearing before dismissal. The Respondent's own witness confirmed no disciplinary process was undertaken because the Claimant was said to be unavailable, yet the Respondent had postal addresses for all employees and did not write to him, and could have raised disciplinary proceedings at the 8th June 2016 conciliation meeting.

p. 11
04

What reliefs are available to the Claimant

Holding

The Claimant was awarded a declaration of unfair termination, one month's salary in lieu of notice (Kshs. 21,200) under sections 35 and 36, and compensation of 7 months' gross salary (Kshs. 148,400) under section 49(1)(c), with interest and costs; the outstanding salary claim was refused as already paid.

Reasoning

The contract was terminable by notice under section 35 and none was issued. Compensation under section 49(1)(c) was merited considering the Respondent's failure to pay two months' salary, its deviation from legal requirements, and the length of the Claimant's service. The unpaid salary had been paid into the Claimant's account during the pendency of the suit.

p. 11

Legal principles established

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  • Dismissal is ultimately caused by the employer; some overt action by the employer must be present to bring the employment into termination.
  • An employer who alleges abscondment but never decides to terminate on that ground cannot rely on absconding as the anchor of the termination.
  • The employer bears the burden under sections 43 and 45 of the Employment Act of proving valid and fair reasons for termination, failing which the termination is substantively unfair.

Court orders

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  1. 1.A declaration that the termination of the Claimant's employment was unfair
  2. 2.One month's salary in lieu of notice, Kshs. 21,200
  3. 3.Compensation pursuant to section 49 [1] [c] of the Employment Act, Kshs. 148,400
  4. 4.Interest at Court rates on the awarded sums, with effect the date of filing suit till full payment
  5. 5.Costs of the suit

Authorities

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Legislation

  • Employment ActSection 43
  • Employment ActSection 45
  • Employment ActSection 41
  • Employment ActSection 36
  • Employment ActSection 35
  • Employment ActSection 47(5)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 44(4)(a)
  • Employment ActSection 35(5)
  • Employment Act, 2007Section 49
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (9)

  • David Nyaniui Mburu -vs- Sunmattt Limited
    (2017) eKLR
  • Godfrey Aniere vs. Unique Suppliers Limited
    Nairobi ELRC Cause 65 of 2011
  • David Gichana Omuya v Mombasa Maize Millers Ltd
    (2014) eKLR
  • George Onyango Akuti vs G4S Security Services Kenya Ltd
    [2013] eKLR
  • Felistas Acheha Ikatwa vs Charles Peter Otieno
    [2018] eKLR
  • Joseph Nzioka v Smart Coatings Limited
    [2017] eKLR
  • GMK v Kenyatta National Hospital
    [2020] eKLR
  • Rebecca W. Nyangolo vs. Prashant Raval
    [2021] eKLR
  • Schmann Concept Communications Natal [Pty] Limited
    [1997] 8 BLLR 1092 [LC]
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Article 162(2) as read with Article 165(5) of the Constitution; Employment Act, 2007 provisions applied: sections 35, 36, 41, 43, 45, 47(5) and 49)

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, "Juma v David Engineering Limited (Cause 108 of 2017) [2022] KEELRC 1315 (KLR)", Case Analysis (2022). Not stated in the judgment (Statement of Claim dated 23rd January 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1315/eng@2022-05-05

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