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ELRCPartially AllowedCause 843 of 2012· [2013] KEELRC 427 (KLR)

PATRICK MATI NGULI V ST VINCENT CATHOLIC CHURCH [2013] KEELRC 427 (KLR)

Industrial Court of Kenya
27 March 2013
LNLinnet Ndolo
775 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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In this first-instance claim filed on 21st May 2012, Patrick Mati Nguli sued St Vincent Catholic Church for unfair termination of employment and failure to pay terminal benefits. He alleged he was employed as a night guard in December 2003 at a monthly salary of Kshs. 6,000 without a written appointment letter, and that his employment was terminated verbally in August 2011 without cause or notice after he requested a salary raise. The Respondent neither filed a reply nor attended court, and the matter proceeded ex parte on 1st and 26th February 2013 with the Claimant appearing in person. The Claimant called two witnesses who corroborated his employment and the circumstances of his dismissal. The Court framed two issues: whether an employment relationship existed, and whether the termination was unfair. Finding the Claimant and his witnesses truthful, consistent and corroborative, it held the employment relationship was established despite the absence of documentary proof. Applying Section 45(2) of the Employment Act, which places the burden on the employer to prove valid reason, fair reason and fair procedure, and noting that the Respondent offered no evidence to the contrary, the Court found the termination both substantively and procedurally wrongful and hence unfair. The Court awarded five months' salary as compensation for unfair termination, one month's pay in lieu of notice, service pay at 15 days' pay per completed year of service, and annual leave for the entire period, totalling Kshs. 86,400. The claim for house allowance was disallowed as unproved. The Respondent was ordered to meet the costs and to issue a Certificate of Service.

Key legal issues

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01

Existence of employment relationship

Holding

An employment relationship was established on oral evidence despite absence of a written contract.

Reasoning

The Claimant had no letter of appointment and was paid in cash. The Court therefore assessed the demeanour of the Claimant and his two witnesses, finding them forthright, truthful, and consistent and corroborative. Their sworn testimony that he worked as night guard from December 2003 to August 2011 sufficed to establish the employment relationship.

p. 2
02

Unfair termination

Holding

The termination was both substantively and procedurally wrongful and unfair within the meaning of Section 45 of the Employment Act.

Reasoning

Applying Section 45(2) of the Employment Act, the employer bore the burden of proving a valid and fair reason and fair procedure. The Respondent did not file a reply, attend court or offer evidence to the contrary. The Claimant's uncontradicted evidence showed termination without cause, notice or termination letter, following his salary review request.

p. 2

Legal principles established

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  • In the absence of documentary proof of employment, an employment relationship may be established on the basis of viva voce evidence where the court finds witnesses credible.
  • Under Section 45(2) of the Employment Act, a termination is unfair if the employer fails to prove a valid and fair reason and fair procedure; the burden of proof rests on the employer.

Court orders

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  1. 1.Award of Kshs. 30,000 being 5 months' pay in compensation for unfair termination
  2. 2.Award of Kshs. 6,000 being 1 month's pay in lieu of notice
  3. 3.Award of Kshs. 21,000 being service pay at 15 days' pay for each completed year of service (7 years)
  4. 4.Award of Kshs. 29,400 being annual leave for the entire period of service
  5. 5.Total award of Kshs. 86,400 payable by the Respondent to the Claimant
  6. 6.Respondent to meet the costs of the case
  7. 7.Respondent to issue the Claimant with a Certificate of Service

Authorities

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Legislation

  • Employment ActSection 45(2)
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court (Cause for unfair termination of employment and failure to pay terminal benefits)

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, "PATRICK MATI NGULI V ST VINCENT CATHOLIC CHURCH [2013] KEELRC 427 (KLR)", Case Analysis (2013). Cause 843 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/427/eng@2013-03-27

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