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 specified in judgment text (ELRC cause filed 18th June 2014, Nakuru)· [2024] KEELRC 1678 (KLR)

Anthony v Wambugu t/a Lemo Pastries (Cause 223 of 2014) [2024] KEELRC 1678 (KLR)

Employment and Labour Relations Court
27 June 2024
DNDavid Nderitu
3,350 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

A Nakuru court ruled a baker's dismissal unfair because the employer skipped due process, awarding him Kshs.155,955.41 after deducting an earlier conciliation payment.

What this practically means

#

Executive summary

#
The claimant, employed as a baker by the respondent from around 2007 at a gross monthly salary rising to Kshs.12,000, claimed he was summarily dismissed on 5th October 2013 without notice, reasons or a hearing, after finding the workplace locked. The respondent, contending the claimant deserted employment after a quarrel over the claimant's demands to dismiss co-workers, sought dismissal of the claim, relying partly on a Kshs.63,000 settlement paid through the labour office. The court found that the claimant was dismissed, noting the respondent's failure to report desertion, his quick replacement of the claimant, and his offer of compensation. The court held that no charges were served, no disciplinary hearing was convened and no dismissal notice was issued, so the dismissal was wrongful, unfair and unlawful in both substance and procedure. On reliefs, the court declared the dismissal unlawful, awarded one month's pay in lieu of notice, annual leave pay, and underpayments per gazetted minimum wages (the employer having failed to produce employment records to rebut these claims), but reduced compensation from the sought twelve months to four months' gross salary because the claimant contributed to his own dismissal. The Kshs.63,000 already received was deducted from the total award of Kshs.218,955.41, leaving a balance of Kshs.155,955.41, with interest at court rates and costs to the claimant.

Key legal issues

#
01

Whether the claimant was unfairly and unlawfully terminated

Holding

The dismissal was wrongful, unfair and unlawful on both substantive and procedural counts

Reasoning

The court found the respondent dismissed the claimant on 5th October 2013 rather than that the claimant deserted. No charges were served, no disciplinary hearing was held and no notice of dismissal was issued. Even if the claimant provoked the disagreement by demanding dismissal of co-workers, the employer was still bound to follow due process, which it failed to demonstrate.

p. 5
02

Whether the claimant is entitled to the reliefs sought

Holding

Partial entitlement: notice pay, annual leave, underpayments awarded in full; compensation limited to four months because the claimant contributed to his dismissal; Kshs.63,000 already received deducted

Reasoning

The employer bears the burden of keeping employment records under Sections 10 and 74 of the Employment Act; failing to produce them, the employee's evidence prevails. Under Section 49(4), the claimant's conduct in provoking the disagreement justified reducing compensation from twelve to four months' gross salary.

p. 6
03

Who should bear the costs of the cause

Holding

Costs awarded to the claimant, having substantially succeeded

Reasoning

Having succeeded on the declaratory and monetary reliefs, the claimant was entitled to costs of the cause.

p. 7

Legal principles established

#
  • An employer must afford due process to an employee both in substance and procedure regardless of the mode of dismissal
  • Where an employer fails to produce employment records to rebut an allegation, the presumption holds and the employee's evidence carries the day
  • A terminal-dues payment made through conciliation without itemization does not estop an employee from pursuing further claims

Court orders

#
  1. 1.A declaratory order that the dismissal of the claimant by the respondent was wrongful, unfair, and unlawful
  2. 2.Award of one month's pay in lieu of notice of Kshs.12,184.25
  3. 3.Award of annual leave pay of Kshs.39,705.55
  4. 4.Award of compensation of four months' gross salary, Kshs.48,737.00
  5. 5.Award of underpayments of Kshs.118,328.61
  6. 6.Total award of Kshs.218,955.41 less Kshs.63,000.00 already paid, balance of Kshs.155,955.41 payable
  7. 7.Interest at court rates from the date of judgment till payment in full
  8. 8.Costs of the cause to the claimant

Authorities

#

Legislation

  • Employment ActSections 43(1), 45(2), (4)(b) & 47
  • Employment ActSections 10 & 74
  • Employment ActSection 49(4)
  • Evidence ActSection 107

Cases cited (3)

  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Mary Chemweno v Kenya Pipeline Company Limited
    (2017) eKLR
  • Loice Otieno v Kenya Commercial Bank Limited
    (2013) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (original jurisdiction over employment dispute)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Anthony v Wambugu t/a Lemo Pastries (Cause 223 of 2014) [2024] KEELRC 1678 (KLR)", Case Analysis (2024). Not specified in judgment text (ELRC cause filed 18th June 2014, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1678/eng@2024-06-27

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