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ELRCPartially AllowedNot stated in the extract (Memorandum of Claim dated 9th February 2015, amended 25th July 2019)· [2021] KEELRC 30 (KLR)

Monica Wanza Mbavu v Roofspec & Allied Works Co Ltd [2021] KEELRC 30 (KLR)

Employment and Labour Relations Court
24 December 2021
MOMaureen Onyango
4,294 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a long-serving domestic employee unpaid salary and leave but rejected her unfair dismissal claims because she could not prove she was actually fired.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent from 1991 and earning Kshs.25,000 per month, claimed she was verbally suspended and dismissed by director Mrs Woodyard on 20th January 2015 after a dispute over invoiced items, and sought gratuity, notice pay, leave pay, salary arrears, overtime and 12 months' compensation for unfair termination totalling Kshs.6,361,883.60. The Respondent denied termination, asserting the Claimant deserted duty, and denied the leave, overtime and arrears claims. The Area Chief (RW2), who mediated the parties, testified he suggested the Claimant take two weeks off with half salary to defuse tension, and that she was not terminated in his office. Holding that termination must pass both the substantive and procedural tests, the court found no proof of dismissal: it was the Chief who suggested the temporary separation, and the Claimant immediately issued a demand letter instead of reporting back. The claims for unfair termination compensation, notice pay, gratuity, service pay and overtime therefore failed - service pay being excluded by NSSF membership under sections 35 and 36, and overtime being unproved. Applying the limitation doctrine under section 90, the court awarded annual leave pay for 3 years (Kshs.65,000) and salary arrears within the limitation period, itemised and less the Kshs.10,000 already paid. A Certificate of Service under section 51 was ordered, with costs to the Claimant and interest on the decretal sum from the date of judgment. Note: the judgment contains an internal arithmetic inconsistency between the stated decretal figure of Kshs.244,955.50 and the awarded total of Kshs.309,955.50.

Key legal issues

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01

Whether the Claimant's employment was unfairly terminated

Holding

No - the Chief who mediated the parties' dispute suggested the temporary separation; the Claimant immediately issued a demand letter and never reported back; no dismissal was proved.

Reasoning

The court accepted RW2 (the Area Chief's) testimony that he suggested two weeks off with half salary to cool tensions, and that 'the Claimant was not terminated in my office'. Both the Claimant's and Mrs Woodyard's evidence aligned with this. A demand letter followed a day after the Kshs.10,000 payment, and there was no further communication on employment status. The court therefore could not find dismissal by the Respondent.

p. 5
02

Entitlement to gratuity/service pay

Holding

Refused - gratuity is discretionary and must be founded in a contract of service, which was not produced; service pay is excluded where the employee is an NSSF member.

Reasoning

Relying on Bamburi Cement v William Kilonzi, the court held gratuity is a gratuitous, discretionary payment payable only if set out in a contract, none of which was produced. Sections 35 and 36 of the Employment Act expressly exclude employees covered by NSSF contributions from service pay, and the Claimant was such an employee.

p. 5
03

Entitlement to leave pay, notice pay and salary arrears

Holding

Notice pay refused (no termination proved); annual leave pay for 3 years and salary arrears within the limitation period awarded; older claims time-barred.

Reasoning

Because records were unavailable and the court could not establish the exact unpaid leave years, it applied the limitation doctrine under section 90 and awarded only 3 years' leave at 21 days per year. For salary, the court went through the Claimant's workings and awarded only the arrears falling within the limitation period, deducting the Kshs.10,000 already paid.

p. 6

Legal principles established

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  • For termination to be fair it must pass both the substantive test and the procedural test under sections 41 and 45 of the Employment Act
  • The employer bears the burden of proving valid reason and fair procedure; where no dismissal is proved, section 45 is not engaged and terminal dues tied to termination fail
  • Service pay is not payable to employees covered by NSSF contributions under sections 35 and 36 of the Employment Act
  • Leave and salary claims are subject to the limitation period under section 90 of the Employment Act

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent for arrears of salary and pay in lieu of annual leave, itemised as December 2012 Kshs.19,946.00; January and February 2013 Kshs.44,374.40; August 2013 Kshs.9,623.20; September to December 2013 Kshs.88,748.80; September 2014 Kshs.4,034.80; October to December 2014 Kshs.66,561.60; January 2015 Kshs.21,666.70; Annual Leave for 3 years Kshs.65,000.00
  2. 2.Less Kshs.10,000/- paid on 22.1.2015
  3. 3.The Respondent shall issue a Certificate of Service to the Claimant in terms of section 51 of the Employment Act
  4. 4.The Respondent shall pay the Claimant's costs
  5. 5.The decretal sum shall attract interest from date of Judgment
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Monica Wanza Mbavu v Roofspec & Allied Works Co Ltd [2021] KEELRC 30 (KLR)", Case Analysis (2021). Not stated in the extract (Memorandum of Claim dated 9th February 2015, amended 25th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/30/eng@2021-12-24

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