Shiunzi v Nyali Academic Services Limited t/a the Mombasa Academy (Cause E122 of 2023) [2024] KEELRC 1415 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether there was unfair termination of employment
No unfair termination; the claimant's absence was not justified as he produced no Medical Certificate from a recognised facility and refused the employer's designated provider
The court accepted the employer's evidence that the medical note from Dr S.A. Mohamed Hatimy was fake and that the claimant refused to attend the designated Avenue Healthcare facility. Section 30 requires a Medical Certificate from a recognised health facility for sick leave. Absence without due cause is gross misconduct under Section 44(4)(a). Although the employer should have issued notice and copied the Labour Officer, the court held the claimant could not benefit from frustrating his own employment, so no unfair termination was established.
Whether the remedies sought should issue
All monetary remedies refused; only the Certificate of Service and the requisite notice to the Labour Officer ordered
Notice pay and compensation were barred because the claimant frustrated his own employment. Service pay was excluded by the employer's medical provision under Section 35(5) and (6). Gratuity was not a contractual term. The only sanction against the respondent was the lapse in reporting the absence to the Labour Officer, which is prosecuted by that officer per Nyali International Beach Hotel. The claim was dismissed with each party bearing own costs.
Legal principles established
#- An employee does not terminate his own employment; where an employee absconds, the employer must issue notice under Section 44(3) and (4) of the Employment Act and, where summary dismissal follows, the notice must be copied to the Labour Officer within 7 days under Section 18(5)(b)
- Sick leave is subject to the employee submitting a Medical Certificate from a recognised health facility, and where the employer has a designated facility, the employee ought to seek treatment there
- Absence from work without due cause or a certified medical issue amounts to gross misconduct under Section 44(4)(a) of the Employment Act
Court orders
#- 1.The respondent shall issue the requisite notice to the Labour Officer
- 2.The respondent shall issue the Certificate of Service for the period the claimant worked for the respondent
- 3.Each party to bear own costs
- 4.The claim is dismissed
- Jurisdiction invoked
- First-instance employment and labour relations claim under the Employment Act, 2007 (specific provision not stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shiunzi v Nyali Academic Services Limited t/a the Mombasa Academy (Cause E122 of 2023) [2024] KEELRC 1415 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1415/eng@2024-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.