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ELRCPartially AllowedNot stated in judgment· [2024] KEELRC 1854 (KLR)

Mutsami v Classic Mouldings Limited (Cause 391 of 2018) [2024] KEELRC 1854 (KLR)

Employment and Labour Relations Court
12 July 2024
AJAbuodha Nelson Jorum
4,170 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that firing a sick employee without a hearing is unfair, and employers must prove desertion claims with real evidence of outreach.

What this practically means

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Executive summary

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The Claimant, employed from 2nd May 2006 as a cleaner/tea girl and later promoted to office assistant at a monthly salary of Kshs 30,000, sued for unlawful termination. She pleaded that on 21st September 2016 she fell ill at work, was granted sick leave, and was subsequently terminated without notice, reasons or a hearing, contrary to sections 35 and 41 of the Employment Act. She sought a declaration, balance December 2016 salary, service pay, one month's pay in lieu of notice, house allowance for 126 months, and twelve months' compensation, totalling Kshs 1,133,000. The Respondent asserted that the Claimant deserted her employment after exhausting sick leave of 35 days on full pay and 40 days on half pay, and that she was paid full terminal dues. The court framed two issues: whether the claimant was unfairly terminated or deserted, and entitlement to reliefs. Applying Stanley Omwoyo Onchweri v Board of Management Nakuru YMCA Secondary School, the court held desertion requires a clear intention never to return and the employer must show outreach efforts and notice of contemplated termination; the driver said to have searched for the claimant was not called as a witness. The court found the certificate of service and terminal dues evidenced termination, and concluded the claimant was terminated because of her illness without adherence to section 41, hence unfairly. Compensation of eight months' salary (Kshs 240,000) and one month's pay in lieu of notice (Kshs 30,000) were awarded; the December salary balance, service pay (claimant being an NSSF member) and house allowance were refused. Total award: Kshs 270,000 plus costs, subject to taxes and statutory deductions, with interest at court rates from the date of judgment until payment in full. Judgment dated and delivered virtually at Nairobi on 12th July 2024 by Abuodha Nelson Jorum, Judge.

Key legal issues

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01

Whether the claimant was unfairly terminated or deserted duties

Holding

The claimant was unfairly terminated on account of her illness; the desertion allegation failed

Reasoning

The Respondent failed to prove desertion with expert opinion or effective outreach. The driver said to have searched for the claimant was not called as a witness, and no notice of contemplated termination was issued. The medical condition was known to the Respondent, which sought and paid for a second opinion recommending surgery. Issuance of a certificate of service and terminal dues evidenced termination. Termination without adherence to section 41 was unfair.

p. 8
02

Whether the Claimant is entitled to the reliefs sought

Holding

Partially: one month's salary in lieu of notice (Kshs 30,000) and eight months' salary compensation (Kshs 240,000) awarded; December salary balance, service pay and house allowance refused

Reasoning

Compensation was assessed at eight months' salary considering ten years of service, the claimant's general unskilled role, and the Respondent's initial support for medical attention. Statutory notice pay was fixed at one month given absence of a written contract. Service pay was barred by NSSF membership; house allowance had been paid; December salary was already paid at half pay less deductions.

p. 8

Legal principles established

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  • Desertion requires intention never to return, and an employer alleging desertion must show efforts to reach the employee and notice that termination on that ground is under consideration
  • Terminal dues payment and a certificate of service are evidence of termination of employment
  • An employee whose employment is terminated on account of illness is entitled to compensation where termination does not adhere to section 41 of the Employment Act

Court orders

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  1. 1.Balance salary for December 2016: NIL
  2. 2.Service pay for 10 years: NIL
  3. 3.One month's salary in lieu of notice: Kshs 30,000
  4. 4.House allowance: NIL
  5. 5.8 months' salary compensation: Kshs 240,000
  6. 6.Total award Kshs 270,000 plus costs of the suit
  7. 7.Items (iii) and (v) subject to taxes and statutory deductions, attracting interest at court rates from date of judgment until payment in full
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (claims for unfair termination and terminal dues)

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, "Mutsami v Classic Mouldings Limited (Cause 391 of 2018) [2024] KEELRC 1854 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1854/eng@2024-07-12

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