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ELRCPartially AllowedCause No 15 of 2020· [2024] KEELRC 445 (KLR)

Ochieng v Kaskazi Beach Hotel Limited (Cause 15 of 2020) [2024] KEELRC 445 (KLR)

Employment and Labour Relations Court
29 February 2024
ANAGNES KITIKU NZEI
2,062 words in judgment
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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 Claimant, employed by the Respondent as Operations Manager from 15/1/2019 and earning a net monthly salary of kshs. 150,000, sued alleging unfair termination on 7/10/2019, unpaid salary arrears of kshs. 1,032,120, and violation of Article 41 of the Constitution. The Respondent denied the claim, asserted the Claimant had voluntarily resigned over absenteeism and dishonesty, challenged the Court's jurisdiction, and counter-claimed kshs. 3,276,800 in accommodation charges for the Claimant's occupation of a director's suite. The Court framed four issues: jurisdiction, entitlement to plead unfair termination, the Claimant's reliefs, and the counter-claim. On jurisdiction, it held the entire suit fell within Section 12 of the Employment and Labour Relations Court Act since both claim and counter-claim arose from the employment relationship. Applying Section 45(3) of the Employment Act, the Court held that the Claimant, having served only 8 months and 22 days, lacked the statutory right to complain of unfair termination, defeating the declaration and compensation claims. The direct constitutional claim failed under the Anarita Karimi Njeru precision principle, Article 41 rights being enacted in the Employment Act. The salary arrears claim succeeded: RW-1 admitted arrears for 4 months and 7 days, and the Court awarded kshs. 873,861.6 computed on gross salary, subject to statutory deductions and interest at Court rates from filing. The counter-claim, abandoned at trial by RW-1's testimony, was treated as abandoned. Judgment was entered for the Claimant with costs of the suit.

Key legal issues

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01

Jurisdiction of the ELRC over the claim and counter-claim

Holding

Court had jurisdiction as both claim and counter-claim arose from the employer-employee relationship

Reasoning

There was common ground that an employer-employee relationship existed from 15/1/2019 to 7/10/2019. Both the memorandum of claim and the counter-claim stemmed from that relationship, bringing the whole suit within Section 12 of the Employment and Labour Relations Court Act.

p. 4
02

Entitlement to plead unfair termination

Holding

Claimant, employed for 8 months and 22 days, had no statutory right to complain of unfair termination

Reasoning

Section 45(3) of the Employment Act restricts the right to complain of unfair termination to employees with at least thirteen months' continuous employment before termination. The Claimant served only about 8 months and 22 days, so the claim for a declaration of unfair termination and 12 months' compensation failed.

p. 4
03

Salary arrears

Holding

Claim for salary arrears succeeded; awarded kshs. 873,861.6 for 4 months and 7 days based on gross salary

Reasoning

RW-1 admitted unpaid salary arrears for 4 months and 7 days. Although the contract stated a net salary of kshs. 150,000, payslips showed basic pay of kshs. 206,424. The court awarded arrears computed on gross monthly salary under Section 49(1)(c), subject to Section 49(2) statutory deductions.

p. 4
04

Direct constitutional claim under Article 41

Holding

Damages claim under Article 41 declined

Reasoning

The Article 41 rights are enacted in the Employment Act; a claimant cannot anchor an employment claim directly on the Constitution without challenging the constitutionality of the relevant statute, and must plead violations with precision as required by Anarita Karimi Njeru v Republic.

p. 4
05

Respondent's counter-claim

Holding

Counter-claim treated as abandoned

Reasoning

RW-1, a co-director, testified at trial that the Respondent did not wish to pursue the Claimant over the counter-claimed accommodation charges of kshs. 3,276,800. The court accordingly treated the counter-claim as abandoned.

p. 5

Legal principles established

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  • Only an employee continuously employed for not less than thirteen months immediately before termination has the right to complain of unfair termination under Section 45(3) of the Employment Act.
  • A party anchoring a claim directly on the Constitution must plead with precision the provisions infringed and the manner of infringement (Anarita Karimi Njeru principle).

Court orders

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  1. 1.Judgment entered for the Claimant for kshs. 873,861.6 being unpaid salary arrears
  2. 2.Awarded sum subject to statutory deductions pursuant to Section 49(2) of the Employment Act
  3. 3.Interest on the net sum payable at Court rates from the date of filing suit
  4. 4.Claimant awarded costs of the suit
  5. 5.Respondent's Counter-Claim treated as abandoned

Authorities

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Legislation

  • Employment ActSection 31
  • Employment ActSection 44(1)
  • Employment ActSection 45(3)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 49(2)
  • Employment and Labour Relations Court ActSection 12
  • Constitution of KenyaArticle 41

Cases cited (1)

  • Anarita Karimi Njeru -vs- Republic
    [1979] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act

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, "Ochieng v Kaskazi Beach Hotel Limited (Cause 15 of 2020) [2024] KEELRC 445 (KLR)", Case Analysis (2024). Cause No 15 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/445/eng@2024-02-29

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