Njaaga v Waweru (Cause 2372 of 2017) [2023] KEELRC 273 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the termination was lawful where the employer alleges desertion
The termination was unlawful because the employer failed to prove desertion and failed to follow fair procedure under sections 41 and 44(4)(a) of the Employment Act.
The burden of proving the reason for termination rests on the employer. The respondent alleged desertion but proved nothing and took no disciplinary steps. Since abscondment constitutes gross misconduct under section 44(4)(a) meriting summary dismissal, the respondent was obliged under section 41 to issue a notice to show cause and hear the claimant before separation. Failure to do so rendered the termination unlawful.
Whether the claimant was entitled to unpaid leave
The claim was denied as leave pay was found to have been paid annually in excess of the monthly salary.
The respondent testified that leave was paid at the end or beginning of each year, citing the January 2015 payment of Kshs 28,000 against a monthly salary of Kshs 20,000. The claimant's bank statement confirmed this payment, and the claimant conceded the position in cross-examination. The Court therefore treated the excess as leave pay.
Whether the claimant was entitled to service pay
Service pay was awarded for 3 1/2 years under section 35(5) of the Employment Act, no exclusion under section 35(6)(d) being established.
Having found the termination unlawful for non-compliance with fair process, the Court held the claimant entitled to service pay for the period served. Section 35(5) entitles an employee whose contract is terminated under section 1(c) to service pay for every year worked, and there was no evidence the claimant fell within the statutory exclusions under section 35(6)(d).
Whether the claimant proved overtime pay
The claim failed for want of particularization and proof.
Relying on Rogoli Ole Manadiegi v General Cargo Services Limited, the Court held that although the employer is custodian of employment records, the employee bears the burden of establishing hours served in excess of the legal maximum. The claimant did not show when he worked excess hours, public holidays or rest days, nor justify the global figure claimed.
Whether there was an unlawful deduction from the April 2015 salary
The respondent failed to justify paying Kshs 2,000 less than the agreed monthly salary, so the shortfall was awarded.
The claimant's bank statement showed payment of Kshs 18,000 in April 2015 against a monthly salary of Kshs 20,000. The respondent offered no justification for the shortfall. The Court awarded the Kshs 2,000 difference.
Legal principles established
#- The burden of proving the reason for termination lies with the employer; an allegation of desertion must be proved by the employer.
- An employer alleging desertion must subject the employee to a fair process under section 41 of the Employment Act before separating from him.
Court orders
#- 1.Judgment entered in favour of the claimant against the respondent
- 2.One month's salary in lieu of notice, being Kshs 20,000.00
- 3.Service pay for 3 1/2 years, being Kshs 30,000.00
- 4.Salary deduction of Kshs 2,000.00
- 5.Total award of Kshs 52,000.00 with interest at court rates from the date of judgment until payment in full
- 6.Respondent to bear the costs of the claim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act; statement of claim under the ELRC procedural framework)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njaaga v Waweru (Cause 2372 of 2017) [2023] KEELRC 273 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/273/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.