Maureen Nyaboke v Creative Consolidated System Limited [2021] KEELRC 26 (KLR)
The bottom line
#A Kenyan court ruled an employee fired without notice, reasons or a hearing was unfairly terminated, awarding her pay, compensation and costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the claimant's employment was fair and in accordance with sections 35, 41, 43 and 45 of the Employment Act, 2007
- 2.Whether the claimant is entitled to notice pay, leave pay, overtime pay, service pay, unpaid July salary and compensation for unfair termination
Key legal issues
#Fairness of termination in the absence of notice, reasons and hearing
Termination without notice, reason or hearing was unfair, entitling the claimant to compensation under sections 45 and 49 of the Employment Act, assessed at 3 months' gross wage (Ksh.29,400) for 8 years of service
The Employment Act requires an employer to issue notice, give reasons and accord a hearing before terminating employment. The respondent never appeared, filed no defence and produced no work records, so the claimant's unchallenged testimony that her employment was terminated on 21st July 2016 without reasons, notice or a hearing stood uncontroverted. Failure to abide due process rendered the termination unfair and compensation of 3 months' gross wage was found appropriate.
Accumulated leave pay
Leave entitlement is capped at 18 months' accumulation under section 28(2); leave pay of Ksh.14,700 awarded
Although the claimant sought leave pay for 8 years, section 28(2) of the Employment Act limits leave accumulation to 18 months. Applying that cap to the monthly wage of Ksh.9,800, the court computed what was due at Ksh.14,700 rather than the Ksh.78,400 claimed.
Overtime and service pay claims
Both claims declined for lack of particulars and proof
The claimant's pleadings and evidence did not explain how the 48-day overtime claim arose. On service pay, apart from asserting that NSSF contributions were not remitted, no case was made as to the nature of employment that would found an entitlement to service pay. Both claims therefore failed even though the claim was otherwise unchallenged.
Legal principles established
#- Termination of employment must comply with the procedural and substantive requirements of the Employment Act
- Where an employer fails to appear or file defence and produce work records, unchallenged claims are taken as established
- Leave can only be accumulated for a maximum of 18 months under section 28(2) of the Employment Act
- Salary for work done is payable regardless of the reasons leading to termination
Court orders
#- 1.Judgment entered for the claimant against the respondent in the sum of compensation Ksh.29,400
- 2.Notice pay of Ksh.9,800
- 3.Leave pay of Ksh.14,700
- 4.Unpaid wages for July of Ksh.6,860
- 5.Costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (sections 28, 35, 41, 43, 45 and 49)
Relief refused
#Unpaid overtime for 48 days (Ksh.23,520)
The claimant did not outline in her pleadings or evidence how the overtime claim arose
Service pay for 8 years (Ksh.39,200)
Save for the assertion that NSSF was not paid, no case was made on the nature of employment to support service pay
Punitive and aggravated damages for breach of constitutional rights
Not awarded in the final orders; only statutory compensation was granted
Costs
Costs of the suit awarded to the claimant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Employment must terminate pursuant to the provisions of section 35, 41, 43 and 45 of the Employment Act, 2007. The employer must issue the employee with notice, allow the employee a hearing, give reasons leading to termination of employment and apply the due process.
In the absence of the respondent, no defence filed or work records, the claims made are not challenged.
pursuant to section 28(2) of the Employment Act, leave can only be accumulated for 18 months and what is due is Ksh.14, 700.
Accordingly, judgement is hereby entered for the claimant against the respondent in the following terms
a) Compensation Ksh.29,400; b) Notice pay ksh.9,800; c) Leave pay Ksh.14,700; d) Unpaid wages for July Ksh.6, 860. e) Costs of the suit.
Issues in the judgment
#The presiding judge's name is printed unclearly in the signature block, appearing as 'M. MBAR?' with a question mark
The judgment omits the year of employment termination in part of the recital, stating 'there was not NSSF paid for her until 21 st July, 2016 when her employment was suspended'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maureen Nyaboke v Creative Consolidated System Limited [2021] KEELRC 26 (KLR)", Case Analysis (2021). Cause No. 2392 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/26/eng@2021-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.