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ELRCAllowedCause No. 19 of 2011· [2012] KEELRC 126 (KLR)

JOHN GACHAU GITONGA v MISS NDUTA MBILE [2012] KEELRC 126 (KLR)

Industrial Court of Kenya
28 August 2012
BOByram Ongaya
337 words in judgment
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The bottom line

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Kenya's Industrial Court ruled that employers must keep employment records, and an employee proved an unwritten job contract when the employer could not.

What this practically means

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Executive summary

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The claimant, appearing in person, sued the respondent for unfair termination under an oral contract of employment, pleading various service orders on minimum wages in a memorandum of claim dated 6th January 2011. The claim covered employment said to run from November 2005 to November 2009. The respondent disputed that any employment relationship existed at the material times. The court found the claimant's evidence sufficient to establish the contract of employment and emphasised that the duty to keep records of the employment relationship vests in the employer, which the respondent failed to discharge. The respondent's evidence was found inconsistent and unable to sustain her denial of the relationship. The court also noted a failed conciliatory process, evidenced by a letter dated 29th June 2010, to which the claimant had invited the respondent but which she did not take up. Observing that employers and employees should be encouraged to resolve disputes amicably through statutory and other conciliation mechanisms, the court held that the Labour Officer process is not the only path to conciliation. The claimant having proved his case on a balance of probabilities, judgment was entered for the claimant as prayed for in the statement of claim, with a decree to issue accordingly. No costs order was recorded.

Key legal issues

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01

Existence of an oral contract of employment

Holding

The claimant proved the existence of an employment relationship from November 2005 to November 2009 on a balance of probabilities; the respondent's inconsistent evidence failed to rebut it.

Reasoning

The claimant's evidence established a contract of employment from November 2005 to November 2009. The burden of maintaining employment records rests on the employer, which was not discharged. The respondent's evidence was inconsistent and failed to support the assertion that no employment relationship existed at all material times.

p. 1
02

Conciliation and settlement of employment disputes

Holding

The court encourages amicable resolution through conciliation, and the statutory Labour Officer process is not the exclusive path; the respondent's failure to take up conciliation weighed against her.

Reasoning

The claimant invited the respondent to a conciliatory process which she failed to take advantage of. A letter dated 29.06.2010 evidenced the ongoing dispute and the failed conciliation. The court noted that conciliation through Labour Officers is not the only route to amicable settlement, and the respondent's non-participation did not defeat the claim.

p. 1

Legal principles established

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  • The duty to maintain records of the employment relationship is vested upon the employer.
  • The statutory process involving Labour Officers is not the only path to conciliation and amicable settlement of employment disputes.

Court orders

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  1. 1.Judgment entered for the Claimant as prayed for in the statement of claim dated 6th January 2011
  2. 2.A decree shall issue accordingly
Jurisdiction invoked
Industrial Court of Kenya, Cause No. 19 of 2011 (employment and labour relations jurisdiction)

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, "JOHN GACHAU GITONGA v MISS NDUTA MBILE [2012] KEELRC 126 (KLR)", Case Analysis (2012). Cause No. 19 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/126/eng@2012-08-28

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