Hassan t/a Big Road Enterprises v Juma (Appeal E009 of 2022) [2023] KEELRC 1262 (KLR)
The bottom line
#A Kenyan court cut a sacked worker's award because he returned from sick leave without a medical certificate, though he still received wage and leave dues.
What this practically means
#Executive summary
#Key legal issues
#Whether there was unfair termination
No unfair termination; the respondent absented himself without a certificate of incapacity and frustrated his own employment, so notice pay and compensation were unavailable
Absence from work due to sickness is allowed, but on return an employee must submit a certificate of incapacity under Sections 30 and 34 of the Employment Act. The respondent returned on July 30, 2019 without medical records and admitted this in testimony. Absence without justifiable cause is a ground for summary dismissal under Section 44(4)(a). The letter to the labour officer on August 9, 2019 showed compliance with Section 18(5)(b).
Period of employment for assessment of dues
Claims assessed only from the last written contract of January 12, 2019; the period before that (casual terms in 2017, unaccounted 2018) cannot be counted
The respondent admitted signing contracts dated April 1, 2016 and January 12, 2019. Employment was regulated by a written contract in 2016, casual terms in 2017, nothing for 2018, and a new contract from January 12, 2019. Under Section 90 of the Act, the court looks only to the last written contract, and an employer may convert casual employment to written terms under Sections 8, 9 and 10.
Underpayment
Tyre Helper is not a defined title under the Wage Orders; treated as a general worker with minimum wage of Kshs 13,572.90, giving underpayment of Kshs 53,010.30 for 7 months
The letter of employment described the respondent as a Tyre Helper, a title not defined under the Wage Orders. The nearest equivalent is a general worker, whose minimum wage from January 12, 2019 to July 30, 2019 was Kshs 13,572.90 against his wage of Kshs 6,000, yielding an underpayment of Kshs 7,572 per month, i.e. Kshs 53,010.30 for 7 months.
Leave allowance
Leave pay computed under Section 28(1)(b) at 1.75 days per completed month for the 7 months, giving Kshs 5,541
Section 28(1)(b) of the Employment Act provides for not less than one and three-quarter days of leave with full pay for each completed month of service within a twelve-month leave-earning period where employment ends after two or more consecutive months. At Kshs 13,572.90 for the 7 months under the last contract, the leave pay due was Kshs 5,541.
Legal principles established
#- An employee allowed time off due to illness must on return submit a certificate of incapacity under Sections 30 and 34 of the Employment Act; failure frustrates his own employment
- In assessing employment claims, the court can only go back to the last written contract by virtue of Section 90 of the Employment Act
- An employer may convert casual employment into a written contract under Sections 8, 9 and 10 of the Employment Act
- A certificate of service must be issued under Section 51 of the Act regardless of the reasons leading to termination
Court orders
#- 1.The judgment in Mombasa CMELRC No 814 of 2019 reviewed
- 2.Underpayment awarded at Kshs 53,010.30
- 3.Wage for July 2019 Kshs 6,000
- 4.Leave allowance for 7 months Kshs 5,541
- 5.Certificate of service to be issued
- 6.Each party to bear own costs
- On appeal from
- Mombasa Chief Magistrate's Court (CM ELRC)
- CM ELRC No 814 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (ELRC appeal from magistrates' court); the court exercised its duty to re-evaluate evidence as a first appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Aegis Construction Limited v Kihenja (Employment and Labour Relations Appeal E035 of 2024) [2025] KEELRC 2375 (KLR)[2025] KEELRC 2375 (KLR)13 Aug 2025
Cite this brief
#Cite this brief
Caselaw, "Hassan t/a Big Road Enterprises v Juma (Appeal E009 of 2022) [2023] KEELRC 1262 (KLR)", Case Analysis (2023). Mombasa ELRC Appeal from CM ELRC No 814 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1262/eng@2023-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.