Tsuma v Kombo Msanifu Kombo t/a Mlolongo Community Health Care (Cause 637 of 2017) [2023] KEELRC 1688 (KLR)
The bottom line
#Kenya's Employment Court awarded a nurse Ksh 263,700 with costs after finding her verbal employment was real and her dismissal unfair, despite her employer's earlier criminal acquittal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant was employed by the Respondent
The court found the Respondent was the Claimant's employer; his denial of being a mere volunteer was unsupported and contradicted by the signed agreement at the Labour Office.
The Claimant produced a written agreement signed by the Respondent, witnessed by his own witness Harun Mutua, undertaking to pay her final dues. The Respondent did not dispute the signatures or contents, alleged coercion without evidence, and did not call any corroborating witness. He also tendered no evidence that the health facility was owned by a community or anyone other than himself.
Whether the suit is res judicata given the Respondent's acquittal in Criminal Case No 370 of 2016
The suit is not res judicata; a criminal acquittal does not bar a subsequent civil suit on similar facts.
Criminal prosecutions and civil suits belong to different regimes of law with different standards of proof. The criminal court acquitted because the prosecution failed to prove beyond reasonable doubt that the accused and the health facility were one and the same. Relying on Alfred Lumiti Lusiba and Section 193 of the Criminal Procedure Code, the court held the acquittal could not found res judicata.
Whether termination of the Claimant's employment was unfair
Termination was unfair; the Respondent did not demonstrate fairness or prove reasons for termination.
The Claimant testified she was terminated verbally on March 30, 2015 without notice or reasons. Under Section 43(1) of the Employment Act the employer must prove the reasons for termination, and under Section 41 must follow fair procedure. The Respondent did neither, so the termination was unfair within the meaning of Section 45.
Whether the Claimant is entitled to the reliefs sought
Salary arrears (ksh 9,700), three months' salary (ksh 60,000), notice pay, leave pay of ksh 14,000 and eight months' compensation were awarded; public holiday allowance, maternity damages and house allowance were declined.
The Respondent had admitted liability for the salary arrears and unpaid salary in the signed Labour Office agreement and never alleged payment. Notice pay was allowed under Section 35(1)(c) and leave pay under Section 28(1), the employer having failed to produce leave records as required by Section 74(f). The maternity, house allowance and public holiday claims failed for want of proof.
Legal principles established
#- The viability of a civil claim does not depend on conviction or acquittal in a criminal trial based on similar facts, because the standards of proof differ.
- Res judicata cannot be invoked based on a previous criminal prosecution on similar matters in a subsequent civil suit.
- Under Section 43(1) of the Employment Act, the employer bears the burden of proving the reasons for termination, failing which the termination is deemed unfair.
- The Employment Act applies to oral contracts of employment.
Court orders
#- 1.Judgment entered for the Claimant against the Respondent: salary arrears for December 2014 ksh 9,700
- 2.Salary for January, February and March 2015 ksh 60,000
- 3.One month salary in lieu of notice ksh 20,000
- 4.Leave pay ksh 14,000
- 5.Compensation for unlawful/unfair termination of employment ksh 160,000 (total ksh 263,000)
- 6.Claimant awarded costs of the suit and interest at Court rates
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tsuma v Kombo Msanifu Kombo t/a Mlolongo Community Health Care (Cause 637 of 2017) [2023] KEELRC 1688 (KLR)", Case Analysis (2023). Memorandum of claim dated August 14, 2017 (Mombasa ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1688/eng@2023-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.