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ELRCPartially AllowedMombasa CMELRC No.538 of 2021 (appeal)· [2024] KEELRC 1474 (KLR)

Tahmeed Transporters Limited v Mwero (Appeal E099 of 2023) [2024] KEELRC 1474 (KLR)

Employment and Labour Relations Court
23 May 2024
MMM. Mbarũ
2,546 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 appellant employer appealed the judgment of the magistrate's court (ELRC) at Mombasa delivered on 21 August 2023, which had found constructive dismissal of a welder employed from August 2018 until his resignation on 19 April 2021, and awarded house allowance, annual leave and leave allowance, unpaid salary, six months' compensation, a certificate of service, costs and 14% interest, while dismissing the employer's counterclaim for notice pay. The Employment and Labour Relations Court at Mombasa, as a first appellate court, reassessed the record. It held that the claim did not plead constructive dismissal with particulars, so the magistrate's finding on that basis was erroneous. However, the non-payment of wages for January to March 2021 offended Sections 17(1) and 18(2) of the Employment Act and constituted an unfair labour practice and breach of contract that justified the respondent's resignation. The house allowance and leave allowance awards were set aside: the Ksh.20,000 wage already exceeded the minimum general order plus 15% house allowance, and leave allowance had no contractual foundation. Unpaid salary of Ksh.66,000 less the Ksh.35,000 paid left Ksh.31,000. The six months' compensation of Ksh.120,000 was upheld as a proper exercise of discretion, with a declaration of unfair termination and a certificate of service. Costs in employment claims require justification under Section 12(4) of the ELRC Act; none being justified, each party was ordered to bear its own costs for the appeal and lower court proceedings. The appeal was declared partially successful.

Key legal issues

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01

Pleading of constructive dismissal

Holding

Finding constructive dismissal without pleading was error

Reasoning

The Memorandum of Claim did not plead constructive dismissal or its particulars. Pleadings serve to notify the opponent so they may respond or admit. Absent specific pleading, the trial magistrate erred in making a finding of constructive dismissal to justify the resignation.

p. 5
02

Non-payment of wages

Holding

Non-payment of wages for three months was unjustified and an unfair labour practice

Reasoning

Section 17(1) and 18(2) of the Employment Act mandatorily require payment of wages when due. Whatever the pending disciplinary issues, wages ought to have been paid until resignation. Failure to pay creates anxiety and amounts to unfair labour practices, entitling the employee to terminate for breach.

p. 5
03

House allowance and leave allowance

Holding

Awards set aside; wages already included house allowance and leave allowance had no contractual basis

Reasoning

With no written contract, wages are regulated under the Minimum General Orders; Ksh.20,000 exceeded the Mombasa general worker minimum plus 15% house allowance. Leave allowance is not payment in lieu of leave under Section 28 and must rest on a contract which was not produced.

p. 5
04

Unpaid salary and counterclaim

Holding

Unpaid wages of Ksh.66,000 less Ksh.35,000 paid leaves Ksh.31,000 due; counterclaim for notice pay dismissed

Reasoning

The respondent admitted receiving Ksh.35,000 in terminal dues against Ksh.66,000 owed, leaving Ksh.31,000. Since non-payment justified termination as an unfair labour practice, the employer's counterclaim for one month's notice pay fails.

p. 6

Legal principles established

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  • A claim of constructive dismissal must be specifically pleaded with particulars before a court can found a finding on it.
  • Failure to pay wages when due is an unfair labour practice and a breach of contract entitling the employee to terminate for good cause.
  • Costs in employment claims do not follow the cause and must be justified with reasons.

Court orders

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  1. 1.A declaration there was unfair termination of employment
  2. 2.Compensation awarded Ksh.120,000
  3. 3.Certificate of service
  4. 4.Each party bears its costs

Authorities

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Legislation

  • Employment Act, 2007Section 47(5)
  • Employment Act, 2007Section 35(5)(d)
  • Employment Act, 2007Section 44(4)(a) and (c)
  • Employment Act, 2007Sections 17(1) and 18(2)
  • Employment Act, 2007Section 28
  • Employment and Labour Relations Court Act, 2011Section 12(4)
  • Minimum General Orders

Cases cited (8)

  • Peter Otabong Ekisa v County Government of Busia
    [2017] eKLR
  • Musonye v Minolta Limited
    [2023] eKLR
  • Milton M. Isanya v Aga Khan Hospital Kisumu
    [2017] eKLR
  • Nathan Ogada Atiagaga v David Engineering Limited
    [2015] eKLR
  • Peter's v Sunday Post Limited
    [1958] EA
  • Coca-Cola East & Central Africa Limited v Maria Kagai Lugaga
    (2015) eKLR
  • Lear Shighadi Sinoya v Avtech Systems Limited
    [2017] eKLR
  • Mokaya v Christ the King Parish & another
    (Cause 386 of 2015) [2024] KEELRC
On appeal from
Magistrates' Court (ELRC), Mombasa
CMELRC No.538 of 2021
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's ELRC 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, "Tahmeed Transporters Limited v Mwero (Appeal E099 of 2023) [2024] KEELRC 1474 (KLR)", Case Analysis (2024). Mombasa CMELRC No.538 of 2021 (appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1474/eng@2024-05-23

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