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ELRCPartially AllowedMemorandum of claim dated 24/2/2017, filed 30/3/2017 (ELRC cause; number not stated in judgment)· [2023] KEELRC 92 (KLR)

Njuguna v Lochab Transport Limited (Cause 613 of 2017) [2023] KEELRC 92 (KLR)

Employment and Labour Relations Court
19 January 2023
2,979 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employer who quietly shut out a sick employee instead of formally firing him unfairly dismissed him, awarding Kshs 325,000.

What this practically means

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Executive summary

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The claimant, a driver employed by the respondent since July 2005 at Kshs 25,000 per month, fell ill in March 2014. He testified that the respondent advised him to seek treatment and report back once fully recovered. Upon reporting back in August 2015, he was turned away, his calls went unanswered, and he was barred from the respondent's premises, prompting him to instruct an advocate. He claimed constructive dismissal and sought a declaration of unfair termination, terminal dues and compensatory damages of Kshs 2,611,667. The respondent denied terminating him, first asserting notice of termination for absence in 2014, then in its amended response that illness (epilepsy) prevented him from continuing as a driver - a contradiction the court flagged. The court framed two issues: whether the claimant was constructively dismissed, and the remedies due. Applying the Court of Appeal's principles in Coca Cola East and Central Africa v Maria Kagai Ligaga, and section 41 of the Employment Act, the court found the employer's strategic silence, evasion and barring of the claimant amounted to a repudiatory breach and unfair termination contrary to sections 41 and 43. It rejected the respondent's desertion argument, noting no notice, demand for a medical report, or salary payments were ever made. Judgment was entered for the claimant: 12 months' gross salary compensation (Kshs 300,000) under section 49(1)(c), one month's notice pay (Kshs 25,000), and costs plus interest. Claims for service pay, overtime, off days, public holidays and leave were rejected for want of evidence. Final award: Kshs 325,000.

Key legal issues

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01

Whether the claimant was constructively dismissed

Holding

Yes - the respondent's conduct (turning him away, barring him from the premises, evading him and failing to engage him after he reported back fit for duty) amounted to a repudiatory breach entitling him to treat himself as constructively and unfairly dismissed

Reasoning

The court found it beyond doubt that the claimant's absence from March 2014 was due to illness, and that the respondent told him to report back once healed. When he did, he was turned away and eventually barred from the premises. The respondent produced no notice or demand for a medical report and contradicted itself between its reply and amended response. Applying the Coca Cola v Ligaga constructive dismissal principles, the employer's strategic silence amounted to unfair termination contrary to sections 41 and 43 of the Employment Act.

p. 6
02

Remedies for unfair constructive termination

Holding

12 months' gross salary compensation under section 49(1)(c) plus one month's pay in lieu of notice; other terminal dues rejected for want of evidence

Reasoning

The court applied the factors in section 49(4) of the Employment Act to award the equivalent of 12 months' gross salary (Kshs 300,000) as compensation, and one month's notice pay (Kshs 25,000). Claims for service pay/gratuity, overtime, off days, public holidays and leave days were rejected because no evidence explained how they arose. Costs plus interest were awarded to the claimant, bringing the final award to Kshs 325,000.

p. 6

Legal principles established

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  • For a termination to be fair there must be both substantive justification and procedural fairness under sections 41 and 43 of the Employment Act
  • An employer cannot remain silent and indifferent to an ailing employee; strategic silence and evasion amount to unfair termination/constructive dismissal
  • Burden of proving constructive dismissal lies on the employee, but where the employer's conduct bars the employee from the workplace, the employee's account may be accepted

Court orders

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  1. 1.Compensation under section 49(1)(c) of the Employment Act equivalent of 12 months gross salary: 25,000 x 12 = Kshs 300,000/-
  2. 2.One month salary in lieu of notice: Kshs 25,000/-
  3. 3.Claimant to pay costs of the claim plus interest at court rates from date of judgment till full payment (awarded to claimant)
  4. 4.Final award to the claimant of Kshs 325,000/-
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 41, 43, 45, 47(5), 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, "Njuguna v Lochab Transport Limited (Cause 613 of 2017) [2023] KEELRC 92 (KLR)", Case Analysis (2023). Memorandum of claim dated 24/2/2017, filed 30/3/2017 (ELRC cause; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/92/eng@2023-01-19

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