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IndustrialPartially AllowedNot stated in the judgment· [2014] KEIC 89 (KLR)

Mohammed v Salim Mohamed Al-Moudy Ltd (Cause 426 of 2013) [2014] KEIC 89 (KLR)

Industrial Court (Employment and Labour Relations Court)
10 December 2014
OMO. N. Makau
1,895 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, employed by the respondent as a loader since 2003 at a monthly salary of ksh.10,206, sued for ksh.270,168 in dues following his dismissal on 30/8/2013, alleging unfair and unlawful termination. He testified that after reporting the cashier, Omar Mohammed Omar, to the police for assaulting him on 20/7/2013, he was suspended on 22/7/2013 and never recalled to work, was paid only ksh.7,000 for July 2013 and nothing for August. The respondent denied liability, alleging the claimant deserted work after assaulting his supervisor. The court identified two issues: whether the claimant deserted or was wrongfully dismissed, and whether the reliefs should issue. It found the claimant's testimony unrebutted because the respondent failed to call the cashier or the boss, drew an adverse inference, and held that the failure to pay salary was a fundamental breach from which termination could be inferred. The dismissal was wrongful and unfair, being without notice and for instituting legal proceedings contrary to Section 46 of the Employment Act. On reliefs, the court awarded one month's notice pay under Section 35 and ksh.21,432.60 in lieu of 21 days' leave for the last three years under Section 28(ii)(a), but refused the claims for three months' notice, 10 years' accrued leave, holidays worked, severance pay (the claimant being an NSSF member under Section 35(6)) and general damages (not contemplated under Section 49). Judgment was entered for the claimant for ksh.31,638.60 plus costs and interest from the date of dismissal.

Key legal issues

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01

Whether the claimant deserted employment or was dismissed

Holding

The claimant was dismissed; the dismissal was wrongful and unfair

Reasoning

The court found the claimant was suspended for reporting an assault by the cashier to police, and the respondent frustrated his resumption of work by not calling him back and failing to pay salary for July and August 2013. The defence never called the cashier or the boss, leaving the claimant's account unrebutted by hearsay. Non-payment of salary was a fundamental breach justifying the inference of termination.

p. 3
02

Entitlement to notice pay

Holding

One month salary in lieu of notice awarded under Section 35 of the Employment Act

Reasoning

The claimant sought three months' notice pay but cited no evidence or law supporting that entitlement. The court applied Section 35 of the Employment Act and awarded one month's salary of ksh.10,206.

p. 4
03

Leave entitlement

Holding

21 days leave per year under Section 28(ii)(a); award limited to last 3 years by limitation

Reasoning

The claimant alleged entitlement to 30 days annual leave but produced no evidence or law. The court applied Section 28(ii)(a) of the Employment Act granting 21 days per year, and limited recovery to three years due to limitation, awarding ksh.21,432.60.

p. 4

Legal principles established

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  • Failure by an employer to pay salary after suspension is a fundamental breach from which termination of the employment contract may reasonably be inferred
  • Dismissing an employee for instituting legal proceedings against the employer is wrongful and unfair within the meaning of Section 46 of the Employment Act
  • An adverse inference may be drawn where a party fails to call crucial witnesses, leaving the opposing testimony unrebutted by hearsay

Court orders

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  1. 1.Declaration that the claimant was wrongfully and unfairly terminated
  2. 2.Award of ksh.10,206 being one month salary in lieu of notice
  3. 3.Award of ksh.21,432.60 in lieu of leave for the last 3 years of service
  4. 4.Judgment for the claimant for ksh.31,638.60 plus costs and interest from date of the dismissal
Jurisdiction invoked
First-instance employment claim; Employment 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, "Mohammed v Salim Mohamed Al-Moudy Ltd (Cause 426 of 2013) [2014] KEIC 89 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/89/eng@2014-12-10

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