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ELRCPartially AllowedCause No 216 of 2018· [2024] KEELRC 840 (KLR)

Nandi v Super Bargains Glass & Hardware Nakuru Hardware Limited (Formerly Amattullah Glass & Hardware Limited) (Cause 216 of 2018) [2024] KEELRC 840 (KLR)

Employment and Labour Relations Court
4 April 2024
4,887 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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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 a loader and assembler from November 2004 to 4 November 2016 on a last monthly salary of Kshs.13,000/=, claimed he was orally dismissed on 4 November 2016 by a manager, Mr. Tom Oyier, without notice, reason or hearing. He sought declarations of unfair termination, terminal benefits totalling Kshs.2,308,162/=, a certificate of service, interest and costs. The respondent denied the dismissal, asserting the claimant deserted duty, and denied employing any manager named Tom Oyier. The court framed three issues: fairness of the termination, entitlement to reliefs, and costs. Applying sections 44, 45 and 47(5) of the Employment Act, it found the respondent failed to justify the termination or prove desertion, having made no efforts to trace the claimant or report to the labour office, and preferred the claimant's evidence of oral dismissal. The dismissal was declared wrongful, unfair and unlawful both substantively and procedurally. On reliefs, the court awarded one month's notice pay of Kshs.13,000/= and maximum compensation of 12 months' gross salary (Kshs.156,000/=) under section 49(4), plus a certificate of service within 30 days, interest from judgment, and costs. It denied the overtime, public holiday and travelling allowance claims for want of particulars and proof, held gratuity unavailable absent contractual provision, and dismissed the NSSF claim as time-barred under section 90, limiting leave pay consideration to three years. Judgment total: Kshs.169,000/= plus interest and costs.

Key legal issues

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01

Whether the claimant's termination was unfair and unlawful

Holding

The court found the claimant was orally dismissed without notice or reason, lacking both substantive and procedural fairness; desertion was not proved by the respondent

Reasoning

The claimant testified he was verbally dismissed by manager Tom Oyier on 4 November 2016 without notice or hearing. RW1 denied the dismissal and alleged desertion, but adduced no evidence of absence dates or efforts to trace the claimant or report to the labour office. The respondent, as custodian of employment records, failed to justify the termination under sections 44, 45 and 47(5) of the Employment Act. The court believed the claimant's account and declared the dismissal wrongful, unfair and unlawful.

p. 7
02

Whether the claimant was entitled to notice pay

Holding

Allowed at Kshs.13,000/= as no notice was issued and the salary was undisputed

Reasoning

The claimant's last gross monthly salary of Kshs.13,000/= was not disputed, and the respondent, as custodian of the employment records, offered no alternative pay. Since no notice preceded the summary dismissal, one month's salary in lieu of notice was awarded as pleaded.

p. 7
03

Whether maximum compensation of 12 months' gross salary was warranted

Holding

Allowed; considering section 49(4) factors, the respondent was grossly unfair to a long-serving employee

Reasoning

Having found the dismissal wrongful and procedurally deficient, the court considered the section 49(4) factors: the claimant served over 10 years, was given no reason or hearing, and received no terminal dues. Neither party sought re-engagement. The court held this a proper case for maximum compensation of Kshs.156,000/=, subject to statutory deductions.

p. 9
04

Whether the overtime, public holiday, travel allowance, gratuity and NSSF claims were payable

Holding

All denied for want of particulars, proof, contractual basis or being time-barred

Reasoning

The court held that while sections 10 and 74 of the Employment Act place record-keeping burdens on employers, an employee must still plead overtime particulars with precision to shift the burden. No particulars, contractual basis or evidence supported the overtime, public holiday, travel and gratuity claims, and the NSSF claim was time-barred under section 90.

p. 8
05

Whether the claimant was entitled to a certificate of service

Holding

Allowed under section 51 of the Act, to be issued within 30 days

Reasoning

The claimant sought a certificate of service in accordance with section 51 of the Employment Act. Having succeeded on the substantive claim of unfair termination, the court allowed this relief as prayed and ordered delivery within 30 days.

p. 9

Legal principles established

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  • An employer must prove both valid reason and fair procedure for a termination to be fair under section 45 of the Employment Act
  • The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer
  • Failure by an employer to keep and avail employment records under sections 10 and 74 of the Employment Act renders the court amenable to upholding the employee's oral evidence
  • An employee must plead particulars of an overtime claim with precision to properly shift the burden of proof to the employer
  • An employer who alleges desertion must make efforts to trace the employee and report to the labour office

Court orders

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  1. 1.A declaration that the dismissal of the claimant by the respondent was wrongful, unfair and unlawful
  2. 2.Award of one month's salary in lieu of notice of Kshs.13,000/=
  3. 3.Award of compensation for unfair termination of Kshs.156,000/= (maximum 12 months' gross salary), subject to statutory deductions
  4. 4.Interest on the award at court rates from the date of judgment till payment in full
  5. 5.The respondent to issue and deliver a certificate of service to the claimant within 30 days
  6. 6.The claimant is awarded costs of the cause

Authorities

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Legislation

  • Employment Actsection 35
  • Employment Actsection 35(5)
  • Employment Actsection 35(6)(d)
  • Employment Actsection 41
  • Employment Actsection 44
  • Employment Actsection 45(1) and (2)
  • Employment Actsection 47(5)
  • Employment Actsection 49(4)
  • Employment Actsection 51
  • Employment Actsections 10 and 74
  • Employment Actsection 90
  • Evidence Actsections 106, 107, 108 and 109

Cases cited (8)

  • Co-operative Bank of Kenya Ltd vs Banking Insurance Finance Union
    CA No. 188 of 2014
  • Ol Pejeta Ranching Limited vs David Wanjau Muhoro
    (2017) eKLR
  • Peter Ngunjiri Kariuki vs Board of Management Magomano Secondary School
    (2022) eKLR
  • Stephen Kamau Karanja vs Family Bank Ltd
    (201) eKLR
  • Berina Nthenya Musila & 3 others vs East African Growers Limited
    (2021) eKLR
  • Mary Chemweno v Kenya Pipeline Company Limited
    (2017) eKLR
  • Loice Otieno v Kenya Commercial Bank Limited
    (2013) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2012) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (original jurisdiction over employment disputes)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nandi v Super Bargains Glass & Hardware Nakuru Hardware Limited (Formerly Amattullah Glass & Hardware Limited) (Cause 216 of 2018) [2024] KEELRC 840 (KLR)", Case Analysis (2024). Cause No 216 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/840/eng@2024-04-04

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