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ELRCPartially AllowedELRC Cause (Nairobi), Memorandum of Claim dated 30th April 2018 (number not stated in judgment)· [2024] KEELRC 2698 (KLR)

Nyongesa v Idyllic Mistley House (Employment and Labour Relations Cause 917 of 2018) [2024] KEELRC 2698 (KLR)

Employment and Labour Relations Court
25 October 2024
AMAnna Ngibuini Mwaure
2,055 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, a security guard employed by the Respondent at Kshs 13,000/= per month, alleged that his employment was verbally terminated on 31st December 2017 without reason, that he was wrongfully arrested from 1st to 2nd January 2018 without charges, and that the Respondent acted maliciously. The Respondent denied unlawful termination, contending the claimant was arrested after an altercation with its manager, reported to Kiamumbi Police Station, and thereafter absconded duty, necessitating dismissal for gross misconduct without following the summary dismissal procedure due to his absence. RW1 admitted no show cause letter was written, no disciplinary meeting was held, no evidence of abscondment was produced, and employment records were unavailable (allegedly stolen). Applying Section 47(5) of the Employment Act, the court held the burden of proving unfair termination lay on the claimant, while the burden of justifying grounds lay on the employer. Following Mary Chemweno and Ronald Nyambu Daudi, the court found the respondent neither established valid reasons for termination nor made any effort to notify the claimant of disciplinary proceedings on the alleged abscondment, contrary to sections 41, 43, 45 and 47 of the Employment Act. The termination was held unlawful and unfair. The court awarded one month's salary in lieu of notice (Kshs 13,000/=) and seven months' compensation (Kshs 91,000/=), declined the leave claim as unproved, awarded costs with interest at 14% from judgment until full payment, and directed issuance of a certificate of service within thirty days. The suit thus succeeded in part.

Key legal issues

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01

Whether the claimant was unfairly terminated

Holding

Yes - the termination was unlawful and unfair as the respondent established no valid reason and followed no fair procedure.

Reasoning

The respondent neither proved that the claimant absconded nor produced employment records (alleging theft of documents). It made no effort to notify the claimant of disciplinary proceedings on abscondment, wrote no show cause letter, and did not follow sections 41, 43, 45 and 47 of the Employment Act. The claimant's alleged assault was never the subject of disciplinary process, and no charges were preferred after his release. Termination was therefore both substantively and procedurally unfair.

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02

Whether the claimant is entitled to the reliefs sought

Holding

Partly - notice pay and seven months' compensation awarded; leave days declined.

Reasoning

The court applied sections 49 and 50 of the Employment Act, awarding one month's salary in lieu of notice and the equivalent of seven months' salary as compensation for the unfair termination. The leave claim failed for want of proof, the claimant having testified he took leave though not all his leave days.

p. 5

Legal principles established

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  • For unfair termination, the burden of proving it occurred rests on the employee while the burden of justifying the grounds rests on the employer (Section 47(5), Employment Act).
  • An employer alleging abscondment must show efforts made to notify the employee of disciplinary proceedings that could lead to termination.
  • Summary dismissal without following sections 41, 43, 45 and 47 of the Employment Act is unfair.

Court orders

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  1. 1.One (1) month salary in lieu of notice of Kshs 13,000/=
  2. 2.Compensation for unlawful termination equivalent of seven (7) months' salary of Kshs 91,000/= (total award Kshs 104,000/=)
  3. 3.Claim for leave days declined
  4. 4.Claimant awarded costs plus interest at court rates at 14% from the date of judgment till full payment
  5. 5.Claimant to be given his certificate of service within thirty (30) days

Authorities

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Legislation

  • Employment ActSections 41, 43, 45, 47, 47(5), 49, 50, 5(7)(c)
  • Evidence ActSection 107
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B

Cases cited (9)

  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2013] eKLR
  • CMC Aviation Limited v Captain Mohammed Noor
    [2015] eKLR
  • Mourine Mukonyo v Embu Water and Sanitation Company
    [2020] eKLR
  • Omar Ndaro Zuma v Modern Coast
    [2019] eKLR
  • Michael Mackenzie Maingi v Steel Structures Limited
    [2021] eKLR
  • Mary Chemweno v Kenya Pipeline Company Limited
    (2017) eKLR
  • Loice Otieno v Kenya Commercial Bank Limited
    (2013) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2012) eKLR
  • Ronald Nyambu Daudi v Tornardo Carriers Limited
    (2018) eKLR
Jurisdiction invoked
Original jurisdiction under the Employment Act, 2007 (unfair termination and wrongful dismissal); Employment and Labour Relations Court Act

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, "Nyongesa v Idyllic Mistley House (Employment and Labour Relations Cause 917 of 2018) [2024] KEELRC 2698 (KLR)", Case Analysis (2024). ELRC Cause (Nairobi), Memorandum of Claim dated 30th April 2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2698/eng@2024-10-25

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