Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the excerpt provided· [2024] KEELRC 1396 (KLR)

Mbulu v Red Court Hotel t/a Boma Hotel Limited (Cause E317 of 2022) [2024] KEELRC 1396 (KLR)

Employment and Labour Relations Court
12 June 2024
NMNzioki Wa Makau
2,389 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan hotel's use of indefinite unpaid leave during Covid-19 was ruled a disguised, unfair termination, costing it over Kshs. 900,000 plus interest and costs.

What this practically means

#

Executive summary

#
The Claimant, formerly a Food and Beverages Supervisor of the Respondent Hotel, claimed unfair and unlawful termination and unpaid terminal dues after being sent on indefinite unpaid leave in March 2020 on grounds of the Covid-19 pandemic, with no further communication until she sued. She sought notice pay, salary for the unpaid leave period, leave pay, service gratuity under the CBA with KUDHEIHA, salary arrears, 12 months' compensation, service charge, Sacco and pension deductions, and a certificate of service. The Respondent denied terminating her, asserting the unpaid leave was a consensual, temporary Covid-19 mitigation measure, that she was later recalled but failed to report, that she was managerial staff outside the CBA, and that payment would amount to unjust enrichment. The Court found that the Respondent never effectively recalled the Claimant and could not prove that the memos, notices or meeting invitations were ever brought to her attention; the email relied on was not filed and its receipt was unacknowledged. It held that the Respondent disguised a termination behind the Covid-19 pandemic, contravening section 40 of the Employment Act, and that no fair procedure under sections 41 and 45 was followed. The Court awarded service pay of Kshs. 270,000/- (computed on six years), one month's notice pay of Kshs. 90,000/-, leave pay of Kshs. 78,000/-, compensation of six months' salary (Kshs. 540,000/-), interest at court rates from the date of judgment, costs of the suit, and a certificate of service under section 51. Claims for salary for the full leave period, CBA service gratuity for 11 years, four months' notice pay, service charge, Sacco and pension deductions were not granted. Judgment dated and delivered at Nairobi on 12th June 2024 by Nzioki Wa Makau, Judge.

Key legal issues

#
01

Whether there was a valid and fair termination

Holding

The termination was substantively and procedurally unfair; the unpaid leave was a disguised termination contrary to section 40 of the Employment Act, with no notice to the Claimant or the labour office and no demonstration that she was recalled

Reasoning

The Claimant was placed on indefinite unpaid leave allegedly due to Covid-19 but was never recalled. The Respondent could not demonstrate that any meeting, memo or recall communication actually reached her; the email inviting her to a meeting was not filed and receipt was unacknowledged. The Court found the Respondent used the pandemic as cover for a termination effected without redundancy notice or a fair hearing, contrary to the Employment Act.

p. 4
02

Quantum of compensation and terminal dues

Holding

Six months' salary compensation was awarded, together with one month's notice pay, leave pay and service pay computed on six years of service

Reasoning

The Court held the breach egregious enough to attract six months' salary compensation, considering the level of service and duration of the engagement. Service pay was computed at half a month's salary for six years, and notice pay at one month. Interest at court rates was awarded from the date of judgment, plus costs and a certificate of service under section 51 of the Employment Act.

p. 4

Legal principles established

#
  • An employer who sends an employee on indefinite unpaid leave and never recalls them cannot rely on Covid-19 to defeat the employee's rights; the arrangement operates as a disguised termination requiring compliance with sections 40, 41 and 45 of the Employment Act
  • Documents an employer relies on as an explanation for termination must be shown to have been brought to the employee's attention

Court orders

#
  1. 1.Service pay of Kshs. 270,000/-
  2. 2.One month's salary in lieu of notice of Kshs. 90,000/-
  3. 3.Leave pay of Kshs. 78,000/-
  4. 4.Compensation of Kshs. 540,000/- (6 months' salary)
  5. 5.Interest at court rates on the above sums from the date of judgment till payment in full
  6. 6.Costs of the suit to the Claimant
  7. 7.Certificate of service in terms of section 51 of the Employment Act

Authorities

#

Legislation

  • Employment Act, 2007section 35
  • Employment Act, 2007section 35(6)
  • Employment Act, 2007section 36
  • Employment Act, 2007section 40
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45
  • Employment Act, 2007section 49
  • Employment Act, 2007section 50
  • Employment Act, 2007section 51
  • Constitution of Kenya, 2010Article 41

Cases cited (2)

  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Madhupaper International Ltd & another v Kenya Commercial Bank Ltd & 2 others
    [2003] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act, 2007 and Article 41 of the Constitution of Kenya invoked)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mbulu v Red Court Hotel t/a Boma Hotel Limited (Cause E317 of 2022) [2024] KEELRC 1396 (KLR)", Case Analysis (2024). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1396/eng@2024-06-12

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