Nginga v South Lake Junction Rocky Resort Limited (Employment and Labour Relations Cause 118 of 2018) [2023] KEELRC 1107 (KLR)
The bottom line
#A Kenyan court ruled a restaurant supervisor's dismissal unfair because the employer gave no reason and followed no fair process, awarding him Kshs.158,250.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was unfairly dismissed or deserted duty
The Claimant was wrongfully, unfairly, and unlawfully dismissed; the desertion/theft allegation was not credible.
The Respondent admitted paying the Claimant Kshs.3,000 fare on 26th December 2017, indicating he left on the Respondent's instructions. The alleged theft of Kshs.59,500 was only confirmed in January 2018, after dismissal. No police or labour office report was made, no call records produced, and no notice or dismissal letter availed. The Respondent's evidence did not make sense and no reason for dismissal was proved.
Twin test of substantive and procedural fairness
No reason for dismissal was given or proved and no procedural fairness was accorded; the dismissal was wrongful, unfair and unlawful.
Citing Mary Chemweno, Loice Otieno and Walter Ogal Anuro, the court applied the requirement of both valid reason and fair procedure. No notices were issued, no dismissal or termination letter was availed, and the Claimant was not heard. The Respondent also concealed the truth about the circumstances of the dismissal.
Quantum of compensation for unfair dismissal under Section 49 of the Employment Act
Three months' gross salary (Kshs.90,000) was fair and reasonable compensation.
The court considered Section 49 factors: the Respondent offered neither substantive nor procedural fairness, was not forthright, offered no compensation, and made no police report despite alleging theft. Against this, the Claimant served a relatively short period of seven months, justifying an award below the 12-month maximum.
Claim for unremitted statutory deductions
Denied; such deductions belong to the statutory bodies, not the employee.
Once deductions are made from an employee's salary they lawfully belong to NHIF, NSSF, KRA, HELB or other bodies on whose behalf they were made. The proper remedy is for the employee to report the employer to those bodies rather than claim the sums personally.
Claim for overtime and public holiday pay
Denied on the strength of the Respondent's muster roll records.
RW1 produced a muster roll delineating hours worked, overtime and payments made. The Claimant, who resided within the premises, did not clock in, which was a reasonable explanation for the absence of time records for him. No evidence dislodged the records.
Legal principles established
#- For dismissal or termination to be fair and lawful it must meet the twin test of substantive and procedural fairness.
Court orders
#- 1.A declaration be and is hereby issued that dismissal of the Claimant by the Respondent was wrongful, unfair, and unlawful.
- 2.The Claimant is awarded a total of Kshs.158,250/= (notice pay Kshs.30,000; December 2017 salary Kshs.26,000; pro rata leave pay Kshs.12,250; compensation Kshs.90,000)
- 3.All the other claims are denied.
- 4.Costs to the Claimant.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nginga v South Lake Junction Rocky Resort Limited (Employment and Labour Relations Cause 118 of 2018) [2023] KEELRC 1107 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1107/eng@2023-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.