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ELRCDismissedNot stated in judgment· [2023] KEELRC 1597 (KLR)

Kiema v Segera Limited (Employment and Labour Relations Cause E019 of 2022) [2023] KEELRC 1597 (KLR)

Employment and Labour Relations Court of Kenya
4 July 2023
3,965 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a former hotel chef's claims for overtime and damages, finding her employment contract, voluntary resignation, and Covid-19 isolation policies were lawful.

What this practically means

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Executive summary

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The claimant, formerly employed as senior chef at the respondent's lodge at Segera Retreat, Nanyuki, from 1st January 2015, sued alleging unconstitutional treatment and unfair labour practices that forced her to resign. She sought Kshs 2,567,500 as withheld overtime, Kshs 10 million damages for unlawful detention during a Covid-19 isolation period at Nyakio Hotel (21st December 2020 to 7th January 2021), Kshs 3 million for unfair labour practices, a certificate of service, costs and interest. The respondent denied the claims, contending the claimant resigned voluntarily, was paid all terminal dues which she acknowledged, was part of management not entitled to overtime, and that isolation was done pursuant to government Covid-19 guidelines applicable to all returning staff. It also objected to territorial jurisdiction, proposing transfer to Nyeri ELRC. The court found the objection could not stand because the respondent had submitted to the court's jurisdiction and the ELRC has nationwide territorial jurisdiction. On the merits, the court held the claimant was not entitled to overtime as she admitted being in management; bonus was discretionary and performance-related; the isolation was reasonable and in line with Covid-19 guidelines and could not ground damages; and no unpaid terminal dues remained given NSSF membership and acknowledged payments. The certificate of service had been issued but not collected. The court found the claim not proved and dismissed it entirely with no order as to costs.

Key legal issues

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01

Territorial jurisdiction of the ELRC

Holding

The court disregarded the jurisdiction objection because the respondent submitted to the court's jurisdiction and the ELRC has nationwide territorial jurisdiction

Reasoning

The cause of action arose in Nanyuki, ordinarily within Nyeri ELRC's territory. However, the respondent entered appearance and participated fully in the hearing, only raising jurisdiction at the tail end. The court held the ELRC has territorial jurisdiction over the entire nation and dismissed the objection.

p. 7
02

Claim for overtime pay

Holding

Claim failed as the claimant admitted she was in management and the contract excluded overtime for her position

Reasoning

Clause 12 of the contract provided no overtime for the management position of senior chef. Under cross-examination the claimant admitted she was in the management team and not entitled to overtime. Her claim for bonus could not rescue the overtime prayer since parties are bound by pleadings.

p. 7
03

Claim for constitutional violations (unlawful detention during Covid-19 isolation)

Holding

Claim failed; isolation at Nyakio Hotel was reasonable and consistent with government Covid-19 guidelines

Reasoning

The claimant, a chef handling food and in contact with guests, was required to isolate per government Covid-19 guidelines. Nyakio Hotel was an agreed isolation centre, the respondent paid all costs, tests were done by KEMRI, and all returning staff were treated the same way. The respondent acted reasonably and in good faith.

p. 8
04

Claim for unfair labour practices and terminal dues

Holding

Claim not proved; resignation was voluntary, dues were paid and NSSF membership covered the service pay claim

Reasoning

The claimant's resignation of 28th October 2020 was voluntary and accepted; she conceded under cross-examination that she was not coerced. Terminal dues including salary to 25th January 2021, accrued leave, days worked and service pay were computed and paid, acknowledged by the claimant on 8th January 2021. As an NSSF member, no unpaid dues remained.

p. 8

Legal principles established

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  • A party who submits to a court's jurisdiction by entering appearance and participating in the hearing cannot raise lack of territorial jurisdiction at the tail end of the hearing
  • A claimant who admits to being in a management position under a contract excluding overtime pay is not entitled to overtime
  • An employer who isolates an employee in line with government Covid-19 guidelines and in good faith to protect other employees cannot be held liable for inhuman treatment

Court orders

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  1. 1.The claim by the claimant is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticles 27, 41
  • Employment ActSections 5(3), 45(2), 46, 51
  • Civil Procedure ActSection 27

Cases cited (10)

  • Bomas of Kenya v Thiriku
    (Civil Appeal 379 of 2019) [2022] KECA 795 (KLR) (24 June 2022)
  • National Education Health & Allied Workers Union (NEHAWU) v University of Cape Town and Others
    [2002] ZACC 27
  • Council of Mining Unions v Chamber of Mines of SA
    (1985) 6 ILJ 293 (IC)
  • Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd.
    [1992] ZASCA 149
  • Elizabeth Washeke And 62 Others v Airtel Networks (K) Ltd & another
    [2013] eKLR
  • Motor Vessel Lilian S v Caltex Oil (K) Limited
    [1989]
  • George Gicheru v Senior Private Kioko & Others
    [2013] eKLR
  • Joseph Muthee Kamau and another v David Mwangi Gicheru and another
    [2013] eKLR
  • Daniel Otieno Migore v South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC
    SC 91/2002
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over labour matters throughout Kenya; respondent's territorial jurisdiction objection disregarded

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kiema v Segera Limited (Employment and Labour Relations Cause E019 of 2022) [2023] KEELRC 1597 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1597/eng@2023-07-04

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