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ELRCPartially AllowedCause No 232 of 2018· [2024] KEELRC 48 (KLR)

Mngambwa v Leisure Lodge Limited (Cause 232 of 2018) [2024] KEELRC 48 (KLR)

Employment and Labour Relations Court
25 January 2024
ANAGNES KITIKU NZEI
2,055 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Mombasa court ruled that a hotel unfairly fired a worker by skipping notice, and contract clauses can't override Kenya's Employment Act notice rules.

What this practically means

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Executive summary

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The Claimant, a Kitchen Steward employed by the Respondent hotel from 2014, sued seeking service pay, salary for March 2018, overtime, twelve months' compensation for unfair termination, one month's salary in lieu of notice, a certificate of service and costs. He pleaded that on 12/3/2018 his services were terminated without notice, without reasons and without a hearing, while he had a running contract set to end on 30/4/2018. The Respondent denied the claim, asserting seasonal engagements, a contract clause permitting seven days' notice without reasons, and payment of dues calculated under a Collective Bargaining Agreement with KUDHEIHA; it raised a preliminary objection on prematurity which Ndolo J dismissed on 29/7/2021, holding the CBA was unexecuted and the objection required evidence. At trial before Nzei J, the Claimant testified that no termination notice was issued, that no reason was given, and that he had no proof of overtime. RW1 conceded in cross-examination that no show cause letter issued, no disciplinary process was undertaken and dues were unpaid. The court found the suit was not premature, as the Respondent produced only the same unexecuted CBA and adduced no evidence of incompetence. Termination was held unfair for failure to serve a termination notice, statutory notice not being capable of contractual curtailment. The court awarded nine months' salary (Kshs 332,388) as compensation, Kshs 14,772.8 for twelve days worked in March 2018, and Kshs 36,932 in lieu of notice, totaling Kshs 384,092.8, subject to statutory deductions. Service pay was declined on account of NSSF membership, and overtime was rejected as unproved. A certificate of service was ordered within thirty days, with costs of the suit and interest to the Claimant.

Key legal issues

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01

Prematurity of suit for failure to exhaust CBA dispute resolution mechanisms

Holding

Suit was not incompetent; the CBA produced in evidence was unexecuted and the Respondent adduced no evidence to prove the alleged incompetence

Reasoning

Ndolo J had earlier held that applicability of the CBA was a contested matter requiring evidence. At trial the Respondent produced the same unexecuted CBA filed in 2018, and no executed and valid CBA was produced. Without evidence, the prematurity objection could not stand.

p. 4
02

Whether termination was unfair

Holding

Termination was unfair because the Respondent failed to issue a termination notice before terminating a running contract

Reasoning

Both the Employment Act (Section 35) and the contract of 1/3/2018 required seven days' notice. The contract ran to 30/4/2018 but was terminated with immediate effect on 12/3/2018 without notice, and without a show cause letter or disciplinary process.

p. 4
03

Whether contractual notice clauses can override statutory notice

Holding

Parties cannot by contract shorten the statutory notice period

Reasoning

Although the contract permitted termination on seven days' notice without reasons, the statutory minimum notice under Section 35 of the Employment Act applied to a contract running beyond the probationary period. The clause did not displace the statutory entitlement.

p. 4

Legal principles established

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  • Failure to issue a statutorily required termination notice renders termination of employment unfair
  • Parties to a contract of service cannot contract out of or shorten the statutory notice period

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for Kshs 332,388 compensation for unfair termination
  2. 2.Kshs 14,772.8 salary for 12 days worked in March 2018
  3. 3.Kshs 36,932 one month salary in lieu of notice (total Kshs 384,092.8)
  4. 4.Awarded sum subject to statutory deductions pursuant to Section 49(2) of the Employment Act
  5. 5.Respondent to issue a certificate of service within thirty days from the date of judgment
  6. 6.Claimant awarded costs of the suit and interest at Court rates

Authorities

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Legislation

  • Employment ActSection 35(a)(c)
  • Employment ActSection 35(6)(d)
  • Employment ActSection 49(2)
  • Employment ActSection 51(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (not expressly cited in the judgment)

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, "Mngambwa v Leisure Lodge Limited (Cause 232 of 2018) [2024] KEELRC 48 (KLR)", Case Analysis (2024). Cause No 232 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/48/eng@2024-01-25

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