Abdulkadir v Silverstar Automobiles Limited (Cause E335 of 2022) [2024] KEELRC 2683 (KLR)
The bottom line
#A Kenyan employment court dismissed both an unfair termination claim and the employer's counterclaim, ruling the employee voluntarily quit and nobody proved their case.
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 claimant worked for the respondent and at what salary
- 2.Whether the claimant was terminated by lockout or voluntarily ceased working
- 3.Whether the claimant is entitled to residual remedies (leave, service pay, commissions, notice pay)
- 4.Whether the respondent's counterclaim is established and whether the Court has jurisdiction over the house and plots
Key legal issues
#Whether the claimant was terminated by lockout
No termination occurred; the claimant voluntarily ceased reporting to work in June 2021
RW testified the claimant became sporadic after his wife resigned and eventually stopped reporting in June 2021. The claimant could not state a specific lockout date. Given the informal, family-based enterprise and 27-year relationship with the Managing Director, a lockout was found inconsistent with the relationships; the unfair termination claim collapsed.
Claimant's true monthly salary
Last monthly pay was Kshs. 30,000.00 as per tax returns and muster roll
The claimant confirmed tax returns were made and correct; CW2 and RW confirmed the muster roll was accurate. His reliance on unsigned, unauthenticated petty cash vouchers to assert Kshs. 123,750.00 per month was rejected as incredible.
Residual remedies (leave, service pay, commissions)
All refused
Leave was found to have been taken (including paternity leave nine times); service pay barred by Section 35 of the Employment Act given NSSF contributions; no contractual basis for commissions. The claims for leave and the base amounts used in computation were found unjustified.
The counterclaim
Counterclaim dismissed as not established
RW conceded she had nothing to connect the M-Pesa statements to the claimant's phone, so the exhibit had no probative value. The house and Utange plots were not shown to have been bought by the respondent as anticipatory final benefits, and the Court lacked jurisdiction over land title disputes outside the contract of service.
Legal principles established
#- Section 35 of the Employment Act bars a claim for service pay where NSSF contributions were made for the employee
- An employment court lacks jurisdiction to determine disputes over title to land not part of the contract of service
Court orders
#- 1.Dismissal of the claimant's suit
- 2.Dismissal of the respondent's counterclaim
- 3.Each party to bear own costs of the proceedings
- 4.Respondent to deliver the claimant's certificate of service within 30 days
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 Article 162(2) of the Constitution (employment and labour relations dispute); no express provision quoted in the judgment
Relief refused
#Declaration that termination was irregular, unlawful and illegal; 12 months' compensation; notice pay; interest
The Court found the claimant voluntarily stopped reporting to work; there was no termination
Service pay at 15 days for each of 27 years
Claimant was an NSSF member and no contractual basis for the claim
Unpaid leave for 27 years
Court found on a balance of probability that leave was afforded throughout service; claim also statute barred per respondent
Commission on Kshs. 60,000,000 at 1.5%
No contractual basis established
Costs
Each party to bear own costs of the proceedings
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.
the alleged lock-out never took place but that the claimant decided to stop reporting to work, all by himself and voluntarily so.
Section 35 of the Employment Act operates to bar the claim in this case where NSSF was contributed for the claimant.
the Court would not have jurisdiction to hear and determine a dispute about the title in the house and plots in circumstances that the same is not part of the contract of service.
judgment is hereby entered for the parties for dismissal of both the claimant’s suit and the counterclaim with orders each party to bear own costs of the proceedings; and, the respondent to deliver the claimant’s certificate of service in 30 days.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdulkadir v Silverstar Automobiles Limited (Cause E335 of 2022) [2024] KEELRC 2683 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2683/eng@2024-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.