WILSON MONGARE v SAMSON N. NYAMWARO & 2 others [2013] KEELRC 445 (KLR)
The bottom line
#Kenya's Industrial Court ruled an oral work agreement counts as employment, awarding a 'tout' unfairly dismissed compensation of Kshs. 252,000.
What this practically means
#Executive summary
#Key legal issues
#Existence of employment relationship despite denial by employer
The Claimant was an employee under an oral contract, not a tout on commission
The Court applied the Employment Act definitions of employer, employee and contract of service, which allow oral or implied contracts. It preferred the Claimant's evidence: documents showed him managing the Nairobi Branch and meeting the City Engineer; passenger receipts carried his phone number; and the 1st Respondent was a full-time teacher during the relevant period, making a Manager plausible.
Fairness of termination
Termination was unfair for want of substantive justification and procedural fairness
The employer gave no reasons and did not follow the procedures in sections 41, 43 and 45 of the Employment Act; the Claimant was merely told via the 1st Respondent's son that there was no more work. Failure to grant a hearing and valid reasons rendered the dismissal unfair, entitling the Claimant to compensation of 10 months' salary.
Assessment of remedies
10 months' compensation, notice pay and October salary awarded; six heads rejected for lack of evidence
The Court awarded 10 months' salary as compensation, one month in lieu of notice and October 2011 salary, holding the Respondent bore the consequence of not producing employment records to counter the Claimant's evidence. Claims for gratuity, leave, off duty, holidays, house allowance and overtime failed for want of factual and legal foundation.
Legal principles established
#- A contract of service may be oral, expressed or implied
- Termination requires both substantive justification and procedural fairness under sections 41, 43 and 45 of the Employment Act
Court orders
#- 1.Declaration that termination was unfair
- 2.Respondent to pay Claimant 10 months' salary in compensation at Kshs. 210,000; 1 month salary in lieu of notice at Kshs. 21,000; and October 2011 salary at Kshs. 21,000, totalling Kshs. 252,000
- 3.Certificate of service to be availed to the Claimant forthwith
- 4.Payment within 30 days of the reading of the Award
- 5.No order on the costs and interest
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act 2007); first-instance claim under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "WILSON MONGARE v SAMSON N. NYAMWARO & 2 others [2013] KEELRC 445 (KLR)", Case Analysis (2013). Cause 2112 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/445/eng@2013-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.