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ELRCDismissedNot stated in judgment· [2024] KEELRC 2683 (KLR)

Abdulkadir v Silverstar Automobiles Limited (Cause E335 of 2022) [2024] KEELRC 2683 (KLR)

Employment and Labour Relations Court
30 October 2024
BOByram Ongaya
1,921 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed both an unfair termination claim and the employer's counterclaim, ruling the employee voluntarily quit and nobody proved their case.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 1994 to 2021, sued claiming that in June 2021 the respondent locked him out of the premises without notice, terminating his employment unlawfully. He sought a declaration of unlawful termination, 12 months' compensation, service pay for 27 years, unpaid leave for 27 years, salary arrears for June 2021, commissions of 1.5% on Kshs. 60,000,000, one month's notice pay, interest, a certificate of service and costs, asserting a monthly salary of Kshs. 124,000. The respondent denied the lockout, contending the claimant abandoned employment in solidarity with his wife, the former General Manager who resigned in January 2021. It counterclaimed for Kshs. 2,673,000 allegedly paid to himself without authority, a declaration that a house in South C, Nairobi and two Utange plots were held in trust for the respondent, Kshs. 49,000,000 for those properties, return of mobile phone lines and business records. The claimant asserted the true salary was higher than the payroll figure and that the house and plots were bought with his and his wife's salaries. The Court found the claimant's last salary was Kshs. 30,000 per tax returns and muster roll; that no lockout occurred and the claimant voluntarily stopped reporting to work, so no termination and no unfair termination claims arose; that leave was afforded, service pay barred by Section 35 of the Employment Act as NSSF was contributed, and no contractual basis for commissions existed. The counterclaim failed for lack of evidence and lack of jurisdiction over land title. Both suit and counterclaim were dismissed, each party bearing own costs, with the respondent ordered to deliver the certificate of service in 30 days.

Key legal issues

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01

Whether the claimant was terminated by lockout

Holding

No termination occurred; the claimant voluntarily ceased reporting to work in June 2021

Reasoning

RW testified the claimant became sporadic after his wife resigned and eventually stopped reporting in June 2021. The claimant could not state a specific lockout date. Given the informal, family-based enterprise and 27-year relationship with the Managing Director, a lockout was found inconsistent with the relationships; the unfair termination claim collapsed.

p. 4
02

Claimant's true monthly salary

Holding

Last monthly pay was Kshs. 30,000.00 as per tax returns and muster roll

Reasoning

The claimant confirmed tax returns were made and correct; CW2 and RW confirmed the muster roll was accurate. His reliance on unsigned, unauthenticated petty cash vouchers to assert Kshs. 123,750.00 per month was rejected as incredible.

p. 4
03

Residual remedies (leave, service pay, commissions)

Holding

All refused

Reasoning

Leave was found to have been taken (including paternity leave nine times); service pay barred by Section 35 of the Employment Act given NSSF contributions; no contractual basis for commissions. The claims for leave and the base amounts used in computation were found unjustified.

p. 4
04

The counterclaim

Holding

Counterclaim dismissed as not established

Reasoning

RW conceded she had nothing to connect the M-Pesa statements to the claimant's phone, so the exhibit had no probative value. The house and Utange plots were not shown to have been bought by the respondent as anticipatory final benefits, and the Court lacked jurisdiction over land title disputes outside the contract of service.

p. 5

Legal principles established

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  • Section 35 of the Employment Act bars a claim for service pay where NSSF contributions were made for the employee
  • An employment court lacks jurisdiction to determine disputes over title to land not part of the contract of service

Court orders

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  1. 1.Dismissal of the claimant's suit
  2. 2.Dismissal of the respondent's counterclaim
  3. 3.Each party to bear own costs of the proceedings
  4. 4.Respondent to deliver the claimant's certificate of service within 30 days
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (employment and labour relations dispute); no express provision quoted in the judgment

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, "Abdulkadir v Silverstar Automobiles Limited (Cause E335 of 2022) [2024] KEELRC 2683 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2683/eng@2024-10-30

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