DAN BILLY OUMA AMITO V BAKE ‘N’ BITE MOMBASA ROAD [2013] KEELRC 322 (KLR)
The bottom line
#A Kenyan bakery was ordered to pay a dismissed worker Kshs 229,200 because it had no written contract and never gave him a hearing.
What this practically means
#Executive summary
#Key legal issues
#Date and terms of employment
Claimant employed from 3rd February 2010 as a casual at Shs.524 per day, terms converting automatically to a monthly contract after one month of continuous service
The claimant produced uncontroverted bank statements showing payments from the respondent from 7th February 2011, contradicting the respondent's claim of employment from 1st August 2011. Under section 10(7) of the Employment Act the burden of disproving the alleged terms was on the employer, who produced no documents. The court found the respondent did not tell the truth and failed to discharge that burden.
Unfair termination
Termination was unfair both substantively and procedurally
The letter cited non-performance but the respondent's own witness confirmed the termination followed an arrest for allegedly employing a stranger. The claimant was never given a chance to defend himself, no performance evaluation records or warnings were produced. Under sections 41, 43 and 45(2) of the Employment Act, valid reason and fair procedure were not established; the humiliating arrest and detention compounded the unfairness.
Proof of payment of terminal dues
The respondent failed to prove payment for days worked
The claimant denied signing the discharge voucher. The handwriting expert's report was inconclusive, did not show the analysis, and the expert's qualifications were not stated. The officer who prepared the voucher and made any payment was not called to testify, and no explanation was given whether payment was by cash, cheque or bank deposit.
Overtime
Claimant worked 12 hours daily for about 20 months and is awarded Kshs.180,000 overtime
The respondent produced no records of hours worked; the law obliges the employer to keep such records. The court accepted 12-hour days, computed extra hours (2,700) above the statutory maximum of 225 hours monthly, and applied one-and-a-half times the hourly rate derived from the basic salary.
Legal principles established
#- Where an employer fails to produce a written contract, the burden of proving or disproving an alleged term of employment is on the employer
- An employee must be informed of charges and given an opportunity to be heard before termination
- The employer must keep and produce employment records such as hours worked; the employee bears no such burden
Court orders
#- 1.A declaration that the Claimant was unfairly terminated by the Respondent
- 2.The Respondent to pay the Claimant the sum of Shs.229,200
- 3.The Respondent shall pay costs to the Claimant
- Jurisdiction invoked
- Employment and labour relations jurisdiction of the Industrial Court (Employment Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DAN BILLY OUMA AMITO V BAKE ‘N’ BITE MOMBASA ROAD [2013] KEELRC 322 (KLR)", Case Analysis (2013). Cause 41 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/322/eng@2013-05-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.