Court Ruling On Employee Taking Annual Leave 

By Perminus Wainaina,

The Employment and Labour Relations Court (ELRC) has reaffirmed that annual leave is not a privilege but a legal right every employee is entitled to.

Justice Monica Mbaru, sitting in Mombasa, ruled that employers have a duty under the Employment Act to organise and allow staff to take their annual leave. Denying this right or punishing employees for using it amounts to an unfair labour practice.

Background Of The Case

The case involved Badar Hardware Limited and its former employee, Isaiah Masinde, who worked as a long-distance driver.

Mr Masinde had applied for his annual leave, which was partly granted. He then requested an additional 17 days accrued from 2021. The company did not respond to his request, and when he later reported back to work, he was sent home. By February 2023, he was informed that his services were no longer required.

The magistrate’s court found that he had been unfairly dismissed and awarded him Ksh 787,521 for notice pay, unpaid leave, service pay, and compensation. On appeal, the ELRC reviewed the award to Ksh 515,000, excluding service pay, but upheld the finding that the termination was unfair.

The Court’s Ruling

In her decision, Justice Mbaru made it clear that annual leave is a right under Section 28 of the Employment Act and not something that an employer may withhold at will. She emphasised that employers have a legal duty to ensure that their staff take their leave when it is due. Further, she ruled that terminating employment because an employee seeks to enjoy this right amounts to unfair dismissal. In her words, “Punishing an employee for taking yearly leave constitutes an unfair practice.”

Why This Ruling Matters To Employers

This case highlights an important lesson for employers. Annual leave is not optional, and you must facilitate and approve it when requested. Failure to manage leave properly can expose your business to legal disputes and costly awards, as was seen in this case. Employers also need to recognise that employees cannot be penalised for exercising their right to rest.

As an employer, it is therefore critical to have clear HR policies, proper leave management systems, and to ensure compliance with the Employment Act. By doing so, you not only protect your organisation from legal risks but also promote a healthier, more productive workforce.

Need Guidance On Labour Laws?

For many employers, labour laws in Kenya can be complex. A small oversight, whether in managing leave, issuing contracts, or handling termination, can quickly escalate into a costly court battle. Beyond the financial risk, such cases also damage your company’s reputation and disrupt operations.

At Corporate Staffing Services, we work with employers every day to interpret and apply the law correctly. From drafting watertight HR policies to training your managers to resolving employee disputes before they reach the courtroom, our goal is to keep your business compliant and protected.

Don’t wait until a staff member takes you to court to start paying attention to labour laws. A proactive approach saves you money, time, and stress. Learn more about our Labour Laws Advisory Services here.

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Perminus Wainaina is the C.E.O. at Corporate Staffing Services. For help on your pressing staff issues, including recruitment, staff productivity, business performance, training, labour laws etc., write to this email  marketing@corporatestaffing.co.ke and we shall organize a free consultation meeting.