Njoki v Kilonzo (Appeal E149 of 2021) [2023] KEELRC 748 (KLR)

Employment and Labour Relations Court

28 March 2023

BOByram Ongaya

2,774 words in judgment

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·~11 min to read original · ~4 min brief

The bottom line

A Kenyan court threw out an employee's award because he never returned after suspension and his wage claims were vague and time-barred.

What this practically means

Executive summary

This is a first appeal and cross-appeal against part of a Principal Magistrate's judgment of October 29, 2021 in an employment claim. The claimant alleged he worked as a driver and property agent from 1995 until November 25, 2016 when his employment was unfairly terminated over alleged theft, and claimed unpaid salary, notice pay, accrued leave, service pay and compensation. The trial Court had found his employment converted from casual to permanent, awarded unpaid leave, service pay and salary, but declined compensation for unfair termination. The appellant appealed the awards; the respondent cross-appealed the refusal of unfair-termination damages. The Court re-evaluated the evidence as on a first appeal. It found the respondent worked from 1995 to 2001 at Kshs 3,000 per month, was out of employment from 2002 to 2011, and from 2011 to 2016 was compensated per assignment on a moving piece-rate basis, rejecting the pleaded Kshs 20,000 monthly wage as contradictory. On termination, the Court held that the house help's report implicating the respondent in theft amounted to a valid and fair reason for separation under sections 43 and 45 of the Employment Act; the respondent was suspended for two weeks, never returned, and was never dismissed, so there was no unfair or constructive termination and the cross-appeal failed. The trial Court's awards of unpaid November 2016 salary, 21 years' accrued leave and service pay were set aside, the latter partly because claims for 1995–2001 were time barred. Each party was ordered to bear their own costs of the appeal and the lower court proceedings.

Key legal issues

Tenure and terms of employment, including the applicable salary

Holding

The respondent worked from 1995 to 2001 as a seller of wines and spirits at Kshs 3,000.00 per month, was not employed from 2002 to 2011, and from 2011 until 2016 was compensated per assignment on a moving piece-rate basis; the claim of a Kshs 20,000.00 monthly wage was not trusted

Reasoning

The respondent gave no testimony to rebut the appellant's account of the gaps in employment and could not recall his salary in cross-examination, contradicting his pleaded Kshs 20,000.00 monthly wage; the pleaded terminal dues and damages figures were also internally inconsistent with that wage.

p. 4

Whether the termination was unfair

Holding

There was no termination at all; the respondent deserted after a two-week suspension and the theft report constituted a valid and fair reason for separation

Reasoning

The house help reported in the respondent's presence that he had taken the jewellery; police were involved; the respondent was suspended for two weeks and did not report back, so the appellant was entitled to summary dismissal and no constructive unfair termination was established.

p. 5

Correctness of the trial Court's awards of remedies

Holding

The trial Court erred in awarding unpaid November 2016 salary, 21 years' accrued leave, and service pay, and those awards were set aside

Reasoning

The wage base was unexplained and the respondent had not served 21 continuous years; service pay for 1995–2001 was time barred under section 4(1) of the Limitation of Actions Act and section 90 of the Employment Act, and no service was performed from 2002 to 2011.

p. 5

Legal principles established

On a first appeal the court re-evaluates the evidence and makes its own conclusions bearing in mind it did not hear the witnesses
A report implicating an employee in theft constitutes a valid and fair reason for separation or summary dismissal under sections 43 and 45 of the Employment Act
An employee who fails to report back after lawful suspension, alleging threats, is not constructively unfairly terminated where no breach of the employment contract is shown

Court orders

1.The cross-appeal is dismissed
2.The trial Court's judgment is varied by setting aside the award of unpaid salary Kshs 20,000.00; accrued leave for 21 years Kshs 420,000.00; service pay Kshs 210,105.00; and costs of the suit
3.The appeal is allowed
4.Each party to bear own costs of the appeal and proceedings in the lower court

Authorities

Legislation

Constitution of Kenya, 2010Article 41
Employment Act, 2007Sections 41, 43, 45, 51, 35, 90
Limitation of Actions ActSection 4(1)

On appeal from: Principal Magistrate's Court; Not stated in judgment
Jurisdiction invoked: First appeal to the Employment and Labour Relations Court under the Employment and Labour Relations Court Act (re-evaluation of evidence on a first appeal)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Njoki v Kilonzo (Appeal E149 of 2021) [2023] KEELRC 748 (KLR)", Case Analysis (2023). Appeal No E149 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/748/eng@2023-03-28

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