Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Cause No. (memorandum of claim dated November 20, 2017, filed November 23, 2017)· [2023] KEELRC 1167 (KLR)

Musinyamwashi v China Zhongxing Construction Co Ltd (Cause 2344 of 2017) [2023] KEELRC 1167 (KLR)

Employment and Labour Relations Court
10 May 2023
AMANNA NGIBUINI MWAURE
2,532 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The claimant, employed as a general worker, sued the respondent alleging wrongful and unfair termination on April 29, 2017, seeking declarations of unfair and wrongful dismissal and terminal benefits of Kshs 1,038,682/-. The respondent denied unfair termination, asserting the claimant worked only casually and intermittently from May 2016 to April 2017 and left of his own volition after absconding duty. The court framed two issues: whether the claimant was unfairly terminated, and the remedies due. It found the claimant had worked continuously, deeming him a regular employee under section 37(1) of the Employment Act, entitled to statutory protections including notice under section 35 and a fair procedure under section 41. Although the respondent alleged desertion, it produced no evidence of efforts to reach the claimant, no letter regarding abscondment and no notice to show cause. Applying authorities including Pius Machafu Isindu and Ronald Nyambu Daudi, the court held the employer failed to prove a valid reason for termination, rendering it wrongful and unfair. On remedies, the court awarded five months' salary compensation (Kshs 63,250/-), one month's salary in lieu of notice (Kshs 12,650/-) and service pay for one year (Kshs 6,325.20), totaling Kshs 82,225.60, with costs and interest. Claims for underpayment, overtime, unpaid leave and public holidays were rejected for want of evidence. Judgment was delivered virtually at Nairobi on May 10, 2023.

Key legal issues

#
01

Whether the claimant was unfairly terminated

Holding

The termination was wrongful and unfair; the claimant was a regular employee entitled to protection of sections 35 and 41 of the Employment Act, and the respondent gave no notice, no notice to show cause and proved no valid reason

Reasoning

The court found the claimant to have worked continuously, deeming him a service employee under section 37(1). The respondent alleged desertion but produced no evidence of efforts to reach the claimant or of any notice to show cause. Under section 43 the employer must prove the reason for termination; failing this, the termination is deemed unfair under section 45. No valid reason or fair procedure was demonstrated.

p. 5
02

What remedies the claimant is entitled to

Holding

Five months' salary compensation, one month's salary in lieu of notice and service pay for one year; claims for underpayment, overtime, leave and public holidays rejected for want of evidence

Reasoning

Applying section 49 factors including the claimant's non-contribution to the termination and the period worked, the court awarded five months' salary as compensation. Notice pay followed from the lack of notice. Service pay for one year was awarded because there was no evidence NSSF dues were paid. Underpayment, overtime, leave and public holiday claims failed for lack of specific evidence.

p. 5

Legal principles established

#
  • An employer alleging desertion must show efforts made to reach the employee and put them on notice that termination on that ground is under consideration
  • The employer bears the burden of proving the reason for termination, failing which the termination is deemed unfair

Court orders

#
  1. 1.A declaration that the claimant's termination was wrongful and unfair
  2. 2.Compensation of five (5) months' salary under section 49(5) of the Employment Act, Kshs 63,250/-
  3. 3.One month salary in lieu of notice, Kshs 12,650/-
  4. 4.Service pay for one year of 15 days, Kshs 6,325.20
  5. 5.Total award of Kshs 82,225.60 plus costs and interest at court rates from the date of judgment until full payment

Authorities

#

Legislation

  • Employment Actsection 37(1)
  • Employment Actsection 41
  • Employment Actsection 43
  • Employment Actsection 44
  • Employment Actsection 45
  • Employment Actsection 47(5)
  • Employment Actsection 49(5)
  • Employment Act 2007section 35
  • Evidence Actsections 107 and 108
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (9)

  • Milano Electronics Limited versus Dickson Nyasi Muhaso
    2021 eKLR
  • James Okeyo versus Maskant Flower Limited
    2015 eKLR
  • Godfrey Anjere versus Unique Suppliers Limited
    2015 eKLR
  • Kennedy Maina Mirera versus Barclays Bank of Kenya Limited
    ELRC Cause No 186 of 2015 [MN]
  • Ronald Nyambu Daudi versus Tornado Carriers Limited
    2019 eKLR
  • Pius Machafu Isindu vs Lavington Security Guards Limited
    [2017] eKLR
  • Ronald Nyambu Daudi versus Tornado Ceramics Limited
    2019
  • Evans Ochieng Oluoch vs Njimia Pharmaceuticals Limited
    [2016] eKLR
  • Boniface Nkubu Karagamia versus Protective Custody Limited
    2019 eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over claims of wrongful and unfair termination under the Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Musinyamwashi v China Zhongxing Construction Co Ltd (Cause 2344 of 2017) [2023] KEELRC 1167 (KLR)", Case Analysis (2023). ELRC Cause No. (memorandum of claim dated November 20, 2017, filed November 23, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1167/eng@2023-05-10

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