Chauvel v Charo (Appeal E010 of 2023) [2024] KEELRC 1488 (KLR)

Section 15 of the Civil Procedure Act requires suits to be filed where the respondent resides or the cause of action arose. However, under Article 48 and Section 29(3) and (4)(b) of the ELRC Act, the CJ designated magistrates of the rank of Senior Resident Magistrate to hear employment claims for employees earning up to Kshs. 80,000 monthly. The respondent earned Kshs. 15,000 and resided in Lamu, but the appellant did not demonstrate an equivalent magistrate at Lamu, so Malindi was the nearest competent court.

Section 2 of the Employment Act defines an employer to include an agent, foreman, manager or factor of a company. The appellant was a director closely associated with the company, carrying its agency, management and affairs. The Salomon separate-personality argument did not defeat this statutory definition. The trial court's finding on the employment relationship could not be faulted.

The respondent was issued a notice to show cause dated 26 September 2021 for gross misconduct (fighting at work, absconding duty) but failed to attend or respond. Under Sections 44(4) and 41(2) of the Employment Act, an employer who issues such notice and the employee fails to attend is justified in summarily dismissing. Precedent establishes that an employee who squanders the chance to be heard cannot blame the employer.

Service pay is only payable where the employer fails to deduct and remit statutory dues. Dues were remitted from 2018. An oral contract triggers Section 37 regulation, and any pre-2018 claim was a continuing injury subject to Section 90 limitation. The employer complied with Section 35(5) and (6). Failure to remit does not result in a refund to the employee.

The appellant did not address this head of claim. The respondent gave a breakdown showing a deduction of Kshs. 6,290 for six days absent (26 to 31 July 2021) against due wages, leaving Kshs. 3,000 owed. With no challenge, the award was proper.