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ELRCPartially AllowedNot stated in judgment

Mwikali v The Raphaelites (Cause 1150 of 2017) [2023] KEELRC 1948 (KLR)

Employment and Labour Relations Court
28 July 2023
ANAbuodha J. N.
328 words in judgment
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The bottom line

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A Kenyan employer who ignored an unfair dismissal suit was ordered to pay Kshs.179,000, proving silence in court is costly.

What this practically means

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Executive summary

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This was an undefended employment claim before the Employment and Labour Relations Court at Nairobi. The claimant pleaded that she was employed by the respondent in or about August 2014, pursuant to a verbal appointment, as a counsellor/counselling psychologist at a monthly salary of Kshs.30,000. She testified that her salary was not paid consistently - sometimes she received Kshs.24,000 or Kshs.28,000 depending on the whims of the Director - and that she worked for one year until August 9, 2015, when the respondent terminated her services by SMS, telling her that her services were no longer needed and that she should not report to work. She claimed Kshs.421,400 as compensation for unlawful termination and unpaid terminal dues. Although served, the respondent neither entered appearance nor filed a defence, and did not respond to the demand letter, so the cause proceeded as an undefended suit and the claimant's allegations stood unrebutted. The court entered judgment in her favour, awarding Kshs.30,000 as salary in lieu of notice, Kshs.21,000 in lieu of leave, Kshs.8,000 as salary for eight days worked in August, and Kshs.120,000 being four months' salary as compensation for unfair termination, totaling Kshs.179,000 - considerably less than the sum claimed. The claimant also received costs of the suit, with interest at court rates subject to statutory deductions. Judgment was delivered virtually at Nairobi on July 28, 2023, by Abuodha J.

Questions the Court framed

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

  1. 1.Whether the claimant was employed by the respondent and on what terms
  2. 2.Whether the termination of the claimant's employment was wrongful and unlawful
  3. 3.What terminal dues, notice pay, leave pay and compensation the claimant is entitled to

Key legal issues

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01

Entitlement to terminal dues and compensation for unfair termination in an undefended suit

Holding

Judgment entered for the claimant for notice pay, leave pay, salary for days worked and four months' salary as compensation for unfair termination, with costs and interest.

Reasoning

The claimant pleaded and testified that she was employed on a verbal contract at Kshs.30,000 per month and terminated by SMS without reason or procedure. The respondent, though served, entered neither appearance nor defence, so the allegations went unrebutted. The court assessed notice pay (one month's salary), leave pay, salary for eight days worked in August 2015, and four months' salary as compensation for the unfair termination.

p. 1

Legal principles established

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  • In an undefended cause where the respondent produces no rebuttal, the claimant's uncontroverted allegations sustain judgment.

Court orders

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  1. 1.Judgment entered for the claimant against the respondent
  2. 2.Salary in lieu of notice Kshs.30,000
  3. 3.Payment in lieu of leave Kshs.21,000
  4. 4.Salary for 8 days worked in August Kshs.8,000
  5. 5.Four months' salary as compensation for unfair termination Kshs.120,000 (total Kshs.179,000)
  6. 6.Costs of the suit to the claimant, with interest at court rates subject to statutory deductions

The bench

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

AN
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (statutory provision not expressly cited in judgment)

Relief refused

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Part of the total sum claimed (Kshs.421,400 sought; only Kshs.179,000 awarded)

The court awarded only the sums it found proved in the undefended suit: notice pay, leave pay, salary for days worked and four months' compensation, which is less than the Kshs.421,400 claimed.

p. 1

Costs

The claimant shall have costs of the suit; the decretal amount to attract interest at court rates but subject to statutory deductions.

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.

The respondent though served did not enter appearance and file a defence. The matter therefore proceeded as an undefended cause.
p. 1Undefended suit
The court will therefore enter judgment in favour of the claimant as follows
p. 1Judgment on terminal dues
The claimant shall further have costs of the suit. The amount will attract interest at court rates but subject to statutory deductions.
p. 2Costs and interest - final orders
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS DAY OF 28TH DAY OF JULY, 2023.
p. 2Disposition

Issues in the judgment

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minor

Gender inconsistency in the pleading - claimant described as 'she' but termination described as 'terminated his service'

minor

Blank date line in delivery clause ('ON THIS DAY OF 28TH DAY OF JULY, 2023') and blank signature blocks for counsel

material

Case title, cause number and parties' names are not stated in the judgment text provided

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, "Mwikali v The Raphaelites (Cause 1150 of 2017) [2023] KEELRC 1948 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1948/eng@2023-07-28

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