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ELRCPartially AllowedCause No. 2392 of 2016

Maureen Nyaboke v Creative Consolidated System Limited [2021] KEELRC 26 (KLR)

Employment and Labour Relations Court of Kenya
20 December 2021
581 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The claimant, employed by the respondent on 14th July 2008 at a monthly wage of Ksh.9,800, sued for notice pay, leave pay for 8 years, overtime for 48 days, service pay, unpaid July salary, costs, compensation for unfair termination, and punitive and aggravated damages for breach of constitutional rights. She alleged that on 21st July 2016 her employment was terminated without notice, reason or a hearing. The respondent neither entered appearance nor filed a response, and service was proved, so the claim proceeded unchallenged and the claims were not contested. The court held that employment must terminate in accordance with sections 35, 41, 43 and 45 of the Employment Act, 2007, requiring notice, reasons and a hearing; failure to follow due process rendered the termination unfair, attracting compensation under sections 45 and 49. For 8 years of service, compensation of 3 months' gross wage (Ksh.29,400) was assessed. Notice pay of Ksh.9,800 was awarded. Leave pay was capped at 18 months' accumulation under section 28(2), yielding Ksh.14,700 instead of the Ksh.78,400 claimed. Unpaid salary for July was awarded at Ksh.6,860 for 21 days worked. The overtime and service pay claims were declined for want of particulars and proof. Judgment was entered for the claimant for compensation, notice pay, leave pay, July wages and costs of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 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

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01

Fairness of termination in the absence of notice, reasons and hearing

Holding

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

Reasoning

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.

p. 1
02

Accumulated leave pay

Holding

Leave entitlement is capped at 18 months' accumulation under section 28(2); leave pay of Ksh.14,700 awarded

Reasoning

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.

p. 2
03

Overtime and service pay claims

Holding

Both claims declined for lack of particulars and proof

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Judgment entered for the claimant against the respondent in the sum of compensation Ksh.29,400
  2. 2.Notice pay of Ksh.9,800
  3. 3.Leave pay of Ksh.14,700
  4. 4.Unpaid wages for July of Ksh.6,860
  5. 5.Costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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Unpaid overtime for 48 days (Ksh.23,520)

The claimant did not outline in her pleadings or evidence how the overtime claim arose

p. 2

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

p. 2

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

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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.
p. 1Due process in termination of employment
In the absence of the respondent, no defence filed or work records, the claims made are not challenged.
p. 1Effect of non-appearance and unchallenged evidence
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.
p. 2Statutory cap on accumulated leave
Accordingly, judgement is hereby entered for the claimant against the respondent in the following terms
p. 2Final orders / disposition
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.
p. 2Final orders / disposition

Issues in the judgment

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minor

The presiding judge's name is printed unclearly in the signature block, appearing as 'M. MBAR?' with a question mark

minor

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

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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, "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.