Thumbi v Sparkling Clean Services Ltd (Cause 1093 of 2016) [2022] KEELRC 1476 (KLR)
The bottom line
#A Kenyan court ruled the employee failed to prove unfair dismissal, but her employer still had to pay service pay and house allowance due to missing records.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was unfairly dismissed
The claimant failed to prove unfair termination under sections 45(1) and 41 of the Employment Act
The court found no evidence of termination by the respondent. The respondent's letters to the labour office dated January 17 and 21, 2016 confirmed it had not terminated the claimant and invited her to resume work upon signing a new contract. There was no evidence the claimant responded to that offer. Her continued absence from work resembled voluntary desertion, so she failed to discharge the burden under section 47(5) of the Employment Act.
Entitlement to service pay
Service pay of Kshs 15,045 awarded because the respondent did not produce records showing NSSF remittance for 2006-2008
The respondent produced documents demonstrating NSSF remittance only for 2009-2015. Having failed to prove remittance for 2006-2008, service pay for that unproven period was awarded to the claimant as claimed.
Entitlement to unpaid house allowance
House allowance awarded at the amount computed by the Ministry of Labour, Kshs 54,541
The respondent admitted owing house allowance and offered Kshs 54,539; the claimant did not fault the Labour Officer's calculation. The court awarded the allowance as computed by the Ministry of Labour at Kshs 54,541.
Legal principles established
#- The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer.
- A claimant who deserts duty and does not take up an offer to sign a new contract cannot prove unfair termination.
Court orders
#- 1.Payment of one month in lieu of notice declined as unfair termination was not proved
- 2.Service pay of Kshs 15,045 awarded for the period 2006-2008 as the respondent did not demonstrate remittance of NSSF for that period
- 3.Claim for pro rata leave days declined as records showed the claimant took her leave days
- 4.Unpaid house allowance of Kshs 54,541 awarded as advised by the Ministry of Labour
- 5.Compensation for unfair termination declined
- 6.Each party to bear their own costs
- 7.Interest at court rates from the date of judgment till full payment; final dues Kshs 69,580
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act 2007 (first-instance claim before the Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thumbi v Sparkling Clean Services Ltd (Cause 1093 of 2016) [2022] KEELRC 1476 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1476/eng@2022-06-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.