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ELRCPartially AllowedNot stated in the judgment copy provided· [2024] KEELRC 1815 (KLR)

Kamau v Transit Company Limited (Cause 274 of 2020) [2024] KEELRC 1815 (KLR)

Employment and Labour Relations Court of Kenya
12 July 2024
1,310 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 Claimant sued the Respondent alleging he was employed as a Plant Operator on a net monthly salary of Kshs. 100,000, was dismissed on 28th August 2019, recalled in November 2019, and denied salary for September 2019 to January 2020. He sought a declaration that withholding of salary was unlawful and an unfair labour practice, arrears of salary and annual leave of Kshs. 645,000, compensatory damages equivalent of 12 months' salary at Kshs. 1,200,000, costs and interest. The Respondent denied the pleaded employment terms, asserting he was employed as a Mechanic from January 2019 at a daily rate of Kshs. 3,076, absconded in August 2019 and retained its motor vehicle KBQ 221 J; it counterclaimed for the vehicle's release and damages of Kshs. 432,000. The Claimant testified and, after the Respondent and its new counsel failed to appear, the Respondent's case was closed. The court found no evidence supported the Counterclaim and dismissed it. It held the claim for 12 months' salary as compensatory damages was a statutory remedy under Section 49 of the Employment Act founded on proof of unfair termination, which was neither pleaded nor established, and declined it. The annual leave claim was unspecified and unproved. The court awarded only salary arrears for November 2019 at Kshs. 100,000, with costs to the Claimant and interest at court rate from the date of judgment until payment in full. Judgment was delivered electronically at Nairobi on 12th July 2024 by James Rika, Judge.

Key legal issues

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01

Entitlement to salary arrears

Holding

The Claimant proved arrears of salary only for November 2019 at Kshs. 100,000

Reasoning

The Claimant testified he was dismissed in August 2019, paid August salary late, and recalled in November 2019 but not paid for that month. He was not in employment in September, October and December 2019, and offered no evidence of work in early 2020. The court therefore limited the award to November 2019 salary.

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02

Compensatory damages of 12 months' salary

Holding

The prayer was declined as compensation requires proof of unfair termination under Section 49 of the Employment Act

Reasoning

The Claimant did not plead unfair termination, never clarified when or how he finally left employment, and focused on multiple departures and returns to the employment relationship. Compensation is a statutory remedy tied to unfair termination, which was neither pleaded nor established, so the ambiguous claim for Kshs. 1,200,000 failed.

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03

The Counterclaim

Holding

Dismissed for want of evidence

Reasoning

The Respondent alleged the Claimant absconded while retaining motor vehicle KBQ 221 J and counterclaimed for its release and damages of Kshs. 432,000 for alternative transport. The Respondent neither appeared nor adduced evidence when its case was closed, leaving the Counterclaim unproved, and it was dismissed from the outset.

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Legal principles established

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  • The statutory remedy of compensation equivalent of 12 months' salary under Section 49 of the Employment Act is founded on proof of unfair termination
  • A party bearing the burden of proving its claim, including a counterclaim, must adduce evidence in support of it

Court orders

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  1. 1.The Counterclaim is declined
  2. 2.The Respondent shall pay to the Claimant salary arrears at Kshs. 100,000
  3. 3.Costs to the Claimant
  4. 4.Interest granted at court rate, from the date of Judgment till payment is made in full
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Statement of Claim filed 2nd July 2020)

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, "Kamau v Transit Company Limited (Cause 274 of 2020) [2024] KEELRC 1815 (KLR)", Case Analysis (2024). Not stated in the judgment copy provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1815/eng@2024-07-12

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