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ELRCPartially AllowedMemorandum of Claim filed 16th February, 2017 (amended 2nd December, 2021)· [2023] KEELRC 2787 (KLR)

Anzins v Chairman, Riara Valley Management (Cause 318 of 2017) [2023] KEELRC 2787 (KLR)

Employment and Labour Relations Court
7 November 2023
JGJacob Gakeri
3,136 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a cleaner was unfairly fired without notice or hearing, awarding Kshs.65,400 because the employer never defended the case.

What this practically means

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Executive summary

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The Claimant sued for unfair and wrongful termination of employment and terminal dues, alleging she was employed on 18th December, 2009 as a cleaner at Kshs.10,900/= per month and served until 13th September, 2016 when her employment was terminated without notice or a hearing. She sought a declaration, house allowance, notice pay, underpayment, unpaid public holidays, overtime, rest days, compensation, a certificate of service, costs and interest. The Respondent, though it filed a Reply denying the employment relationship and asserting the Claimant absconded duty after leave, adduced no evidence; its case was closed on 23rd May, 2023 for want of a witness. The court restated that in an undefended suit the claimant must still establish the employment relationship and prove the claim. It found the employment relationship demonstrated by the Respondent's own contradictory averments and the termination letter. Applying the dual test of substantive justification and procedural fairness, the court held the Respondent failed to prove the alleged desertion or compliance with the mandatory Section 41 procedure, rendering the termination unfair. On whether the termination letter was a discharge voucher, the court, guided by Thomas De La Rue and Coastal Bottlers, found it contained no tabulation of dues and bore an unexplained handwritten addition, disqualifying it as a settlement and defeating any plea of waiver. Awards were limited to proved reliefs: declaration, one month's notice pay of Kshs.10,900, compensation of five months' gross salary (Kshs.54,500), a certificate of service, costs and interest. Claims for house allowance, underpayment, public holidays, overtime and rest days were declined for want of pleadings or proof.

Key legal issues

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01

Existence of an employment relationship between the Claimant and the Respondent

Holding

An employment relationship existed despite the Respondent's denial and non-participation.

Reasoning

Although the Respondent alleged the Claimant was a casual worker of Bistar Investment Ltd, it adduced no evidence of the agreed terms, and its plea that the Claimant absconded contradicted the casual-employment averment. The termination letter was additional evidence of the relationship. The court was satisfied the relationship was demonstrated.

p. 4
02

Whether termination was unfair

Holding

Termination was neither substantively justifiable nor procedurally fair.

Reasoning

The Respondent claimed the Claimant absconded duty but adduced no evidence of attempts to contact her or a notice to show cause, and the termination letter made no allegation against her. No evidence showed compliance with the mandatory Section 41 procedure. The dual test of substantive justification and procedural fairness under the Employment Act was therefore not met.

p. 5
03

Whether the termination letter operated as a discharge voucher barring further claims

Holding

The letter was not a discharge or settlement agreement and the Claimant did not waive her rights.

Reasoning

Guided by Thomas De La Rue and Coastal Bottlers, the court examined whether the letter was freely and willingly executed with full knowledge. The letter contained no tabulation of the Claimant's entitlements or amount payable, bore an unexplained handwritten addition of Sh 14,250, and the Respondent adduced no evidence of the circumstances of signing. The inference was possible concealment of essential information, disqualifying the letter as a discharge voucher.

p. 6
04

Entitlement to reliefs despite the suit being undefended

Holding

Only proved reliefs were awarded: declaration, notice pay, 5 months' compensation and certificate of service; the rest were declined for want of proof.

Reasoning

Applying Section 107-109 of the Evidence Act and the rule in Hahn v Singh, the claimant bore the burden of proof notwithstanding the Respondent's absence. House allowance, underpayment, public holidays, overtime and rest day claims failed for want of particulars or evidence. Notice pay was merited as the Respondent tendered no proof of payment, and compensation was fixed at 5 months' gross salary under Section 49(1)(c) considering the length of service, clean record and non-contribution to the termination.

p. 8

Legal principles established

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  • Termination must pass the dual test of substantive justification and procedural fairness.
  • In an undefended suit the claimant must still establish the claim, including the employment relationship.
  • A discharge voucher or settlement agreement only bars further claims if freely and willingly executed with full information; a termination letter lacking a tabulation of dues is not a discharge voucher.
  • Special damages must be specifically pleaded and strictly proved.

Court orders

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  1. 1.Declaration that termination of the Claimant's employment was unfair.
  2. 2.One month's salary in lieu of notice Kshs.10,900/=.
  3. 3.Equivalent of 5 months gross salary, Kshs.54,500/=.
  4. 4.Total award of Kshs.65,400/=.
  5. 5.Certificate of service.
  6. 6.Costs of this suit to the Claimant.
  7. 7.Interest at court rates from date of judgement till payment in full.

Authorities

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Legislation

  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 36
  • Employment Act, 2007Sections 44(4)(a) and (c)
  • Employment Act, 2007Sections 40 and 41
  • Employment Act, 2007Section 31
  • Employment Act, 2007Section 49(1)(c)
  • Employment Act, 2007Section 51
  • Evidence ActSections 107, 108 and 109
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48

Cases cited (12)

  • Boniface Mwangi V B.O.M Iyego Secondary School
    (2019) eKLR
  • Alice Njoki Mirigu V Barclays Bank of Kenya Ltd
  • Humphrey Munyithya Mutemi V Soluxe International Group of Hotels and Lodges Ltd
    (2020) eKLR
  • Monica Kanini Mutua V Al-Arafat Shopping Centre & another
    (2018) eKLR
  • Nicholus Kipkemoi Korir V Hatari Security Guards Ltd
    (2016) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Felistas Acheha Ikatwa V Charles Peter Otieno
    (2018) eKLR
  • Judith Atieno Owuor V Sameer Agriculture & Livestock Ltd
    (2020) eKLR
  • Pius Machafu Isindu V Lavington Security Guards Ltd
    (2017) eKLR
  • Thomas De La Rue (K) Ltd V David Opondo Omutelema
    (2013) eKLR
  • Coastal Bottlers Co. Ltd V Kimathi Mithika
    (2018) eKLR
  • Hahn V Singh
    (1985) 1 KLR 716
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 over unfair termination and terminal dues claims

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, "Anzins v Chairman, Riara Valley Management (Cause 318 of 2017) [2023] KEELRC 2787 (KLR)", Case Analysis (2023). Memorandum of Claim filed 16th February, 2017 (amended 2nd December, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2787/eng@2023-11-07

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