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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 3015 (KLR)

Nyawa v Njuca Consolidated Limited (Cause 399 of 2018) [2023] KEELRC 3015 (KLR)

Employment and Labour Relations Court
23 November 2023
ANAgnes Kitiku Nzei
1,400 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa employment court ruled the worker's firing was unfair, awarding him over Ksh. 277,000 because the employer failed to appear and prove a valid reason.

What this practically means

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Executive summary

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The Claimant, a mason, sued the Respondent alleging he was employed from February 2009 and was terminated without notice or valid reason on 4/6/2016, claiming a declaration of unfair termination, pay in lieu of notice, pay for days worked in November 2017, Sunday overtime, unpaid leave, holiday pay, service pay, twelve months' compensation, a certificate of service, costs and interest. The Respondent filed a memorandum of defence asserting the Claimant was engaged on 1/6/2014, deserted work, and was not entitled to dues, but failed to appear at the virtual hearing despite service. Only the Claimant testified; his evidence stood unchallenged and unrebutted, and the court held the Respondent's defence documents to be unsubstantiated statements. Framing two issues - whether termination was unfair and whether the reliefs were due - the court found the termination unfair under sections 45(2)(a) and 35(1)(c) of the Employment Act. Judgment was entered for ksh. 277,550: nine months' salary (ksh. 163,800) as compensation for unfair termination, one month's pay in lieu of notice (ksh. 18,200), and unpaid leave of 21 days per year of service (ksh. 95,550). Claims for overtime, November 2017 days and holiday pay failed for want of proof, and service pay was disallowed under section 35(6)(d) because the Claimant contributed to NSSF. The Respondent was ordered to issue a certificate of service within thirty days. The Claimant received costs and interest at court rates.

Key legal issues

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01

Whether termination was unfair

Holding

Termination was unfair as it was without valid reason and without notice, and the Respondent offered no rebuttal evidence

Reasoning

The Claimant testified he was terminated without notice or valid reason. Under s.45(2)(a) the employer must prove a valid reason; under s.35(1)(c) termination without notice is unfair. The Respondent, though having filed a defence, did not testify or call witnesses, so the Claimant's evidence stood unrebutted. The court found the termination unfair.

p. 3
02

Entitlement to reliefs

Holding

Compensation of nine months' salary, one month's pay in lieu of notice, and unpaid leave allowed; overtime, November 2017 days, holiday pay and service pay declined

Reasoning

Circumstances of termination justified nine months' salary as compensation. One month's pay in lieu of notice was awarded under s.35(1)(c). Leave was awarded at 21 days per complete year of service. Service pay was barred by s.35(6)(d) because the Claimant contributed to NSSF. Unproved claims for overtime and holidays failed.

p. 4

Legal principles established

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  • An employer bears the burden of proving that the reason for termination is valid; termination without notice is unfair
  • Unchallenged evidence stands unrebutted and is what the court acts upon

Court orders

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  1. 1.Compensation for unfair termination of employment ksh. 163,800
  2. 2.Payment in lieu of notice ksh. 18,200
  3. 3.Unpaid leave ksh. 95,550 (total ksh. 277,550)
  4. 4.The Respondent to issue the Claimant with a certificate of service within thirty days of the judgment
  5. 5.The Claimant is awarded costs of the suit and interest at Court rates
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Employment Act, ss. 35, 45, 51 applied)

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, "Nyawa v Njuca Consolidated Limited (Cause 399 of 2018) [2023] KEELRC 3015 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3015/eng@2023-11-23

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