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ELRCPartially AllowedNot stated in judgment· [2025] KEELRC 1371 (KLR)

Maina (Suing on Behalf of Flora Ambasa Auko - Deceased) v Limoro Kenya Limited (Employment and Labour Relations Cause E114 of 2017) [2025] KEELRC 1371 (KLR)

Employment and Labour Relations Court
9 May 2025
2,555 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employer who simply stops paying a worker who doesn't return from leave still must follow fair termination procedures.

What this practically means

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Executive summary

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The claimant, brother and administrator of the estate of the late Flora Ambasa Auko alias Ruth Ambasa Auko, substituted the deceased as claimant and sought a declaration that the termination was illegal and unlawful, plus Kshs. 3,737,603.00 for overtime, underpayment and unpaid leave, compensation of Kshs. 151,200, costs and interest. The respondent maintained the employee left employment of her own volition after going on leave on 9th May 2016, and that gratuity of Kshs. 80,000 had been paid to the deceased's daughter through the Labour Office. The court framed two issues: whether the termination was fair, and whether the reliefs were merited. Applying sections 45(2) and 41 of the Employment Act, the court found on a balance of probability that the employee was terminated unfairly, her belongings having been thrown out of the employer's estate; even if she failed to return from leave, the employer was obliged to terminate in accordance with section 41 by issuing notice of intention to terminate, which was not done. The termination was declared both substantively and procedurally unfair. Claims for overtime, underpayment and unpaid leave were held time-barred as continuing injury claims filed outside the 12 months prescribed by section 90. The court awarded one month's notice pay of Kshs. 12,600 under section 35, service pay of Kshs. 50,000 under section 35(5) (pleaded as severance), and 12 months' compensation of Kshs. 151,200 under section 49, less Kshs. 80,000 gratuity already paid, for a total of Kshs. 133,800, with costs and interest from the date of judgment. Judgment was delivered at Nairobi on 9th May 2025 by J.W. Keli, Judge.

Key legal issues

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01

Whether the termination of the deceased employee's employment was fair

Holding

The termination was both substantively unfair (no valid reason proved) and procedurally unfair (no hearing under section 41)

Reasoning

The respondent asserted the employee left employment of her own volition after going on leave on 9th May 2016. The court did not believe this, finding instead that the employee was terminated and her belongings thrown out of the employer's estate. Even on the respondent's own account, the employer was obliged to bring the relationship to an end in accordance with section 41 by notice of intention to terminate, which was not done. On a balance of probability the termination was unfair.

p. 3
02

Whether the claims for overtime, underpayment and unpaid leave were entitled

Holding

Time-barred under sections 89 and 90 of the Employment Act as continuing injury claims filed more than 12 months after cessation

Reasoning

These claims relate to backpay during employment and constitute continuing injuries. Termination was on 9th June 2016 and the claim was filed on 16th June 2017, outside the 12-month period prescribed for continuing injury claims. The Court of Appeal's exposition in The German School Society v Ohany on continuing injury under section 90 was applied.

p. 4
03

Entitlement to notice pay, service pay and compensation

Holding

One month's notice pay (Kshs. 12,600), service pay for 8 years (Kshs. 50,000) and 12 months' compensation (Kshs. 151,200) awarded, less Kshs. 80,000 gratuity already paid

Reasoning

Procedural unfairness entitled the employee to one month's notice pay under section 35. With no NSSF or pension evidence, service pay was due under section 35(5), erroneously pleaded as severance pay. Under section 49, taking into account length of service (2008-2016), payment of some terminal benefits, the unfairness and the employee's demise, 12 months' compensation was deserved.

p. 5

Legal principles established

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  • Fairness of termination requires both substantive fairness (valid and fair reason) and procedural fairness under section 41 of the Employment Act
  • Where an employee goes on leave and fails to return, the employer must still terminate the employment in accordance with section 41 of the Employment Act
  • Claims of continuing injury (overtime, underpayment, unpaid leave) must be filed within 12 months of cessation of employment under section 90 of the Employment Act

Court orders

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  1. 1.Declaration that the termination of the employment of Flora Ambasa Auko alias Ruth Ambasa Auko was substantially and procedurally unfair
  2. 2.Notice pay of Kshs. 12,600
  3. 3.Service pay of Kshs. 50,000
  4. 4.Compensation of Kshs. 151,200 for unfair termination
  5. 5.Less paid gratuity of Kshs. 80,000
  6. 6.Total sum awarded of Kshs. 133,800
  7. 7.Costs of the suit to the claimant
  8. 8.Interest at court rate from date of judgment until payment in full

Authorities

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Legislation

  • Employment Actsection 45(2)
  • Employment Actsection 41
  • Employment Actsection 42(1)
  • Employment Actsection 44(3) and (4)
  • Employment Actsection 35 and section 35(5)
  • Employment Actsection 49
  • Employment Act (as amended in 2014)section 89
  • Employment Actsection 90
  • Limitation of Actions Act (Cap. 22)section 4(1)

Cases cited (5)

  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • John Kiiru Njiiri v University of Nairobi
    [2021] eKLR
  • The German School Society & another v Ohany & another
    [2023] KECA 894 (KLR)
  • G4S Security Services (K) Limited v Joseph Kamau & 468 Others
    [2018] eKLR
  • M. R. Gupta v Union of India
    (1995) (5) SCC 628
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

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, "Maina (Suing on Behalf of Flora Ambasa Auko - Deceased) v Limoro Kenya Limited (Employment and Labour Relations Cause E114 of 2017) [2025] KEELRC 1371 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1371/eng@2025-05-09

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