Mwabili v Samruddha Resources (K) Limited (Cause E031 of 2023) [2024] KEELRC 1958 (KLR)
The bottom line
#Kenya's Employment Court in Mombasa awarded an unfairly dismissed manager over Ksh.3.7 million because his employer skipped the hearing and never gave him a written contract.
What this practically means
#Executive summary
#Key legal issues
#Time-bar under Section 90 of the Employment Act
Claims for underpayment and salary arrears are continuing injuries to be addressed within 12 months from cessation of employment; the cause of action accrued with the termination notice of 17 October 2022
The court adopted authority that upon cessation of employment, all claims arising from the relationship accrue and unpaid terminal dues consolidate. The respondent's objection that arrears from March 2018 were time-barred was therefore overtaken by the continuing-injury doctrine, and the arrears claims were addressed through the other heads of relief rather than awarded as pleaded.
Discrimination in failure to issue a written contract
The respondent's refusal to issue the claimant a written contract from March 2018 to October 2022 was unlawful, a fundamental breach of Section 10, and discriminatory; damages of Ksh.100,000 (the minimum) awarded
Sections 7 and 10 impose a legal duty on the employer to issue written terms; failure shifts the employee to Section 37 protection. Section 5(7) placed the burden on the respondent to disprove discrimination, and it offered no explanation for treating the claimant differently from other employees who received written contracts.
Unfair termination
Termination on 17 October 2022 without notice to show cause, particulars, or a hearing breached mandatory Section 41 and was unlawful and unfair
Even if gross misconduct (vying for an MCA seat without resigning) justified summary dismissal under Section 44(3) and (4), Section 41(2) required an explanation, notice and hearing. No policy barring political engagement was filed, particulars of neglect and incitement were not particularised or proved, and no evidence showed the claimant failed to perform his duties.
Remedies
Multiple awards allowed under Section 49: compensation of 10 months' gross salary (Ksh.2,500,000), notice pay Ksh.250,000, leave pay for 18 months (33 days, Ksh.275,000), and service pay of 15 days per Ksh.250,000 salary (Ksh.625,000)
Leave accumulation is capped at 18 months by Section 28(4); service pay under Section 35(5) and (6) is due where statutory dues were unpaid, and the respondent's witness was unsure remittances were made. The respondent also ignored conciliation, justifying costs against it.
Legal principles established
#- An employer who fails to issue a written contract of employment commits a fundamental breach of Section 10 of the Employment Act and, where discrimination is alleged, bears the burden of disproving it under Section 5(7)
- Summary dismissal for gross misconduct requires prior compliance with Section 41(2) - notice, explanation and hearing - failing which termination is unfair
Court orders
#- 1.A declaration that employment was terminated unlawfully and unfairly
- 2.A declaration that there were breaches of the law and fair labour practices and discrimination against the claimant by the respondent
- 3.Damages of Ksh.100,000
- 4.Compensation of Ksh.2,500,000
- 5.Notice pay of Ksh.250,000
- 6.Leave pay of Ksh.275,000
- 7.Service pay of Ksh.625,000
- 8.Costs of the suit to the claimant
- Jurisdiction invoked
- Employment Act (first-instance employment claim); Sections 5, 7, 10, 16(4), 28(4), 35(5)-(6), 37, 41, 44(3)-(4), 49 and 90 of the Employment Act applied
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwabili v Samruddha Resources (K) Limited (Cause E031 of 2023) [2024] KEELRC 1958 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1958/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.