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ELRCPartially AllowedMemorandum of Appeal dated 21st October 2022· [2023] KEELRC 2985 (KLR)

Njeri v Lubutse (Employment and Labour Relations Appeal E182 of 2022) [2023] KEELRC 2985 (KLR)

Employment and Labour Relations Court
17 November 2023
AMAnna Ngibuini Mwaure
4,158 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Appellant employer appealed against a judgment of Hon. H.M. Nyamberi delivered on 22nd September 2022 awarding the Respondent, a former domestic employee, Kshs 418,020.20 for unlawful termination, notice pay, unpaid leave, house allowance, underpayment of wages and service pay. The Appellant contended the Respondent absconded duty, bore the burden of proving unlawful termination under section 109 of the Evidence Act, and that the awards were excessive and unproved. The Respondent maintained she was orally terminated without notice and that the employer bore the statutory record-keeping burden under section 74 of the Employment Act. The court framed two issues: whether the termination was unlawful, and whether the reliefs were properly granted. Relying on the reversal of the burden of proof under sections 43, 45 and 47(5) of the Employment Act, the court held that the Respondent's prima facie evidence shifted the burden to the employer, whose bare allegation of desertion, without inquiries, ultimatums or a section 41 hearing, could not close the contract. The finding of unlawful termination was therefore upheld. On quantum, notice pay, house allowance (Kshs 85,967) and service pay (Kshs 29,824) were upheld, the service pay claim being distinguished from severance pay under section 35(5) and (6). The leave and underpayment awards were set aside for want of proof of computation, and compensation was reduced from eight to five months' salary under section 49(c). The award was substituted at Kshs 175,791, with costs of the appeal and the lower court to the Respondent plus interest at court rates. The appeal thus succeeded only in part.

Key legal issues

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01

Whether the Respondent's employment was unlawfully terminated

Holding

Yes - the trial court correctly found unlawful termination; the Appellant failed to justify the termination or prove desertion with the requisite legal steps

Reasoning

The employee testified she was orally denied access to work, establishing a prima facie case under section 43 of the Employment Act. The burden then shifted to the employer, whose only defence was travel abroad and alleged absconding. The court held that desertion cannot close a contract unilaterally; the employer must invoke section 44, make inquiries into the employee's whereabouts and accord a hearing under section 41. The Appellant did none of this, so the termination was unfair both substantively and procedurally.

p. 5
02

Whether the trial magistrate erred in granting the reliefs claimed

Holding

Partially - notice pay, house allowance and service pay were upheld; leave and underpayment awards were set aside for want of proof; compensation reduced from 8 to 5 months

Reasoning

The court exercised its first appellate discretion head by head. Notice pay was rightfully exercised. Leave and underpayment awards failed for absence of evidence on computation. House allowance was upheld because the Appellant admitted not providing housing or paying house allowance. Service pay was distinguished from severance pay and upheld under section 35(5) and (6). Compensation was reduced to 5 months' salary having regard to four years of service under section 49(c).

p. 9
03

Whether service pay was payable given the Appellant's redundancy argument

Holding

Yes - the claimant sought service pay, not severance pay; service pay is due under section 35(5) and (6) where the employer was not remitting statutory dues

Reasoning

The Appellant argued severance pay is payable only on redundancy. The court, following Ephantus Ndirangu Murage v Memusi Trading Limited, distinguished severance pay (section 40(f), redundancy) from service pay (section 35(5), termination where statutory remittances were not made). Since the memorandum of claim sought service pay, the trial court's award of Kshs 29,824 was upheld.

p. 8

Legal principles established

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  • Once an employee adduces prima facie evidence of wrongful termination, the burden shifts to the employer to justify the termination
  • An employer alleging desertion must demonstrate efforts to reach the employee and accord a disciplinary hearing before closing the contract; desertion does not automatically terminate employment

Court orders

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  1. 1.The court upheld the trial court's finding that the Appellant unlawfully terminated the Respondent's employment and upheld the judgment entered by the trial magistrate in favour of the Respondent
  2. 2.The trial court's award of one-month salary in lieu of notice (Kshs 10,000) is upheld
  3. 3.The prayer for annual leave is rejected for want of proof of how the amount claimed was arrived at
  4. 4.The prayer for underpayment of wages is declined for want of evidence of how the figure of Kshs 141,133.20 was arrived at
  5. 5.The trial court's award of unpaid house allowance of Kshs 85,967/- is upheld
  6. 6.The trial court's award of service pay for period worked of Kshs 29,824/- is upheld
  7. 7.Compensation reduced from 8 months to 5 months' equivalent salary amounting to Kshs 50,000
  8. 8.The award of the trial magistrate is replaced from Kshs 418,020.20 to Kshs 175,791
  9. 9.The Respondent is awarded costs of this appeal and costs of the lower court based on the award, with interest at court rates from the date of judgment until payment

Authorities

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Legislation

  • Employment Act, 2007Section 44(4)(a)
  • Employment Act, 2007Section 44
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 45
  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 35(5) and (6)
  • Employment Act, 2007Section 35 and 36
  • Employment Act, 2007Section 66 and 67
  • Employment Act, 2007Section 49(c)
  • Employment Act, 2007Section 28
  • Employment Act, 2007Section 74
  • Evidence ActSection 107
  • Evidence ActSection 109
  • Retirement Benefits Actregistered pension or provident fund scheme
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48

Cases cited (9)

  • Milano Electronics Limited v Dickson Nyasi Muhaso
    [2021] eKLR
  • Peter Otabong Ekisa v County Government of Busia
    [2017] eKLR
  • James Okeyo v Maskant Flower Limited
    [2015] eKLR
  • Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School
    [2015] eKLR
  • William Gituma Gateere v RAA Limited
    [2020] eKLR
  • Alex Siboi Masinde & another v K K Security
    [2020] eKLR
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    [2018] eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Ephantus Ndirangu Murage v Memusi Trading Limited
    [2015] eKLR
On appeal from
Magistrates' Court
not stated
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment (memorandum of appeal dated 21st October 2022)

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, "Njeri v Lubutse (Employment and Labour Relations Appeal E182 of 2022) [2023] KEELRC 2985 (KLR)", Case Analysis (2023). Memorandum of Appeal dated 21st October 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2985/eng@2023-11-17

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