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ELRCPartially AllowedCause No 1384 of 2018· [2023] KEELRC 2883 (KLR)

Kudheiha Workers Union v Managing Director Pulver Karr Limited (Cause 1384 of 2018) [2023] KEELRC 2883 (KLR)

Employment and Labour Relations Court
10 November 2023
SRStella Rutto
4,588 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court held a company director personally liable for unfair termination, awarding a cleaner Kshs 120,600 after the employer failed to prove he absconded.

What this practically means

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Executive summary

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The Claimant Union sued on behalf of the Grievant, Peter Mutua, formerly a cleaner employed from 2011, seeking reinstatement, accrued salaries and various payments following an alleged verbal suspension on 15th September 2015. The Respondent, Parul Bhatt, Director of Pulver Karr Limited, denied being the employer, raised a preliminary objection on the corporate veil, and contended the Grievant absconded duty after being confronted for chatting with primary school staff during working hours. The Court framed three issues: whether the Respondent was a proper party; whether the Grievant absconded or was unfairly terminated; and entitlement to reliefs. Applying the expansive definition of 'Employer' in Section 2 of the Employment Act and following Daniel Mutisya Masesi vs Romy Madan, the Court overruled the preliminary objection and held the Director was a proper party. On the merits, the Court found the employer failed to prove abscondment: no show-cause letter or hearing was undertaken, the company's evidence on contact attempts was inconsistent, and its unprompted offer to pay 'terminal dues' implied it had ended the employment. The termination was therefore unfair under Sections 43 and 45 of the Employment Act. The Court awarded notice pay (Kshs 12,000), six months' compensation (Kshs 72,000), service pay for four years (Kshs 24,000) and leave pay (Kshs 12,600), totalling Kshs 120,600 with interest, plus a Certificate of Service within 30 days. Claims for underpayments and house allowance were held statute-barred as continuing injuries under Section 90; the sick-off and September salary claims were declined for lack of evidence and prior payment. The Claimant received the costs of the suit.

Key legal issues

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01

Whether the Director of the employing company is a proper party to the suit

Holding

The Respondent, being a Director of Pulver Karr Limited, is a proper party; the Preliminary Objection was overruled.

Reasoning

Section 2 of the Employment Act defines 'Employer' expansively to include agents, foremen, managers and factors. The Court, following Daniel Mutisya Masesi vs Romy Madan & another, held that directors cannot hide behind corporate personality in redressing employment wrongs; the whole economic enterprise is examined.

p. 5
02

Whether the Grievant absconded duty or was unfairly terminated

Holding

The Respondent failed to prove abscondment; it is more probable than not that the Grievant was unfairly terminated within the meaning of Sections 43 and 45 of the Employment Act.

Reasoning

The employer did not conduct a hearing, did not issue a show-cause letter, gave conflicting accounts on whether it called or wrote to the Grievant, and offered terminal dues unprompted - conduct implying it had ended the relationship. Absence, even if proved, warranted summary dismissal procedure under Section 44(4)(a).

p. 7
03

Entitlement to notice pay, compensation, service pay and leave pay

Holding

One month's notice pay, six months' compensation, service pay for four years and leave pay for 18 months were awarded.

Reasoning

Compensation was calibrated to the length of service and circumstances of exit. Service pay was due because the employer did not exhibit records proving NSSF contributions to bring the case within the Section 35(6) exclusions. Leave records were not produced, so leave pay was limited to 18 months under Section 28(4).

p. 7
04

Whether underpayment and house allowance claims were time-barred

Holding

Yes - as continuing injuries, they had to be filed within 12 months of cessation (termination in September 2015), and the suit filed in September 2018 was statute-barred.

Reasoning

Section 90 of the Employment Act imposes a 12-month limit on continuing injuries from cessation, which occurs upon termination. The Court followed G4S Security Services (K) Limited vs Joseph Kamau & 468 others in computing the period.

p. 8

Legal principles established

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  • The term 'Employer' under the Employment Act is defined expansively to include agents, foremen, managers and factors, so directors may be joined in employment claims alongside their companies.
  • Where an employee allegedly deserts duty, the employer bears the burden of proving the absence and the reasonable steps taken to ascertain the employee's whereabouts and afford a hearing.
  • Claims founded on continuing injury under Section 90 of the Employment Act must be filed within twelve months of cessation of the injury, which cessation occurs upon termination of employment.
  • The burden of disproving a term of employment, such as an NSSF-based exclusion from service pay, rests on the employer under Section 10(7) of the Employment Act.

Court orders

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  1. 1.Judgment entered in favour of the Claimant; Grievant awarded one month's salary in lieu of notice of Kshs 12,000.00
  2. 2.Compensatory damages of Kshs 72,000.00 (six months' gross salary)
  3. 3.Service pay for four years of Kshs 24,000.00
  4. 4.Payment in lieu of leave of Kshs 12,600.00
  5. 5.Total award of Kshs 120,600.00 with interest at court rates from the date of Judgment until payment in full
  6. 6.Respondent to issue the Grievant with a Certificate of Service under Section 51 of the Employment Act within 30 days
  7. 7.Claimant to have the costs of the suit

Authorities

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Legislation

  • Employment ActSection 2 (definition of Employer)
  • Employment ActSection 45
  • Employment ActSection 47(5)
  • Employment ActSections 43(1), 45(2)(a) and (b)
  • Employment ActSection 44(4)(a)
  • Employment ActSection 35(5) and 35(6)
  • Employment ActSection 10(7)
  • Employment ActSection 74(1)(f)
  • Employment ActSection 28(4)
  • Employment ActSection 90
  • Employment ActSection 30
  • Employment ActSection 51
  • Limitation of Actions ActSection 4(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (9)

  • Walter Ogal Anuro vs Teachers Service Commission
    (2013) eKLR
  • Anthony Mkala Chitavi vs Malindi Water & Sewerage Co. Limited
    (2013) eKLR
  • Simon Mbithi Mbane vs Inter Security Services Limited
    (2018) eKLR
  • Joseph Nzioka vs Smart Coatings Limited
    (2017) eKLR
  • Reuben Mahindi Mulama vs Menengai Oil Refineries Ltd
    (2016) eKLR
  • Jawadu Hamad Omar vs East Africa Sea Food Limited
    (2017) eKLR
  • Daniel Mutisya Masesi vs Romy Madan & another
    [2013] eKLR
  • Mary Mumbi Kariuki vs Director, Pamoja Women Development Programme
    [2015] eKLR
  • G4S Security Services (K) Limited vs Joseph Kamau & 468 others
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Employment and Labour Relations Court Act) - first-instance claim for unfair termination

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, "Kudheiha Workers Union v Managing Director Pulver Karr Limited (Cause 1384 of 2018) [2023] KEELRC 2883 (KLR)", Case Analysis (2023). Cause No 1384 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2883/eng@2023-11-10

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