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IndustrialPartially AllowedNot stated in the judgment

Katama v Lewa (Cause 108 of 2014) [2014] KEIC 81 (KLR)

Employment and Labour Relations Court (Industrial Court)
5 December 2014
OMO. N. Makau
1,007 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a sacked teacher salary arrears, notice pay and service pay, but clarified that termination without notice is wrongful, not automatically unfair.

What this practically means

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Executive summary

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The claimant, an ECDE teacher employed by the respondent on a verbal contract from January 2009 at Ksh.4,000 monthly (rising to Ksh.6,800 from 2012), applied on 15 July 2013 for one month's maternity leave from 1 September 2013. Her employer extended the leave after she did not deliver within the month, and she returned to work in January 2014. She was not paid salary for May, June and July 2013 nor during maternity leave, and when she demanded her arrears before resuming duties she was told to go home and wait; the respondent subsequently informed her another teacher had been hired. The respondent filed no defence and the suit proceeded undefended on 22 September 2014. The court framed two issues: whether the termination was unfair and whether the reliefs sought should issue. It held that the termination was not founded on misconduct, poor performance or incapacity, so Sections 41, 45 and 46 were not engaged; the dismissal contravened only Section 36's notice requirement, making it wrongful rather than unfair. The claimant was awarded one month's salary in lieu of notice (Ksh.6,800), seven months' salary arrears (Ksh.47,600) and three years' service pay (Ksh.10,200) for the respondent's failure to remit NSSF dues. Claims for compensation for unfair termination, underpayment, general damages for NHIF non-remittance and other heads were dismissed for lack of proof or legal basis. Judgment was entered for Ksh.64,600 plus costs and interest.

Key legal issues

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01

Whether the termination was unfair or merely wrongful

Holding

The termination was wrongful (breach of the Section 36 notice obligation) but not unfair, since it was not based on misconduct, poor performance or incapacity engaging Sections 41, 45 and 46

Reasoning

The employer did not terminate for misconduct, poor performance or incapacity, so the procedural fairness regime of Sections 41 and 45 did not apply, nor any reason under Section 46. The dismissal was simply a failure to serve the contractual/statutory notice required by Section 36, converting the claim into a breach of contract for which salary in lieu of notice is the remedy rather than compensation for unfair termination.

p. 2
02

Entitlement to salary in lieu of notice and salary arrears

Holding

One month's salary in lieu of notice (Ksh.6,800) and salary arrears for seven months (Ksh.47,600) awarded as claimed

Reasoning

Because the dismissal was wrongful for breach of the obligation to serve termination notice, the claimant was entitled to one month's salary in lieu of notice. She was also unpaid for May, June, July, September, October, November and December 2013, totalling seven months at Ksh.6,800, awarded at Ksh.47,600 as prayed.

p. 2
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Service pay for non-remittance of NSSF dues

Holding

Service pay for three years awarded (Ksh.10,200) because the respondent failed to remit NSSF dues for 2012, 2013 and eight months between 2009 and 2011

Reasoning

The claimant proved through NSSF statements and payment vouchers that the employer deducted NSSF contributions monthly but failed to remit them for 2012, 2013 and eight months between 2009 and 2011. The court applied the service pay formula of 15 days' salary per year worked for three years, computing Ksh.6,800 x 15/30 x 3 = Ksh.10,200.

p. 3

Legal principles established

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  • Termination effected without notice contrary to Section 36 of the Employment Act is wrongful, entitling the employee to salary in lieu of notice, even where it is not unfair under Sections 41, 45 and 46

Court orders

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  1. 1.Judgment entered for the claimant for Ksh.64,600
  2. 2.Costs of the suit awarded to the claimant
  3. 3.Interest on the decretal sum awarded
Jurisdiction invoked
Original employment and labour relations jurisdiction (Employment Act); no constitutional provision invoked

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, "Katama v Lewa (Cause 108 of 2014) [2014] KEIC 81 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/81/eng@2014-12-05

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