James Chege & 6 others v Aqua Plumbing Company Limited [2013] KEELRC 622 (KLR)
The bottom line
#A Kenyan court ruled seven workers were unfairly fired and awarded them service pay, notice pay, leave dues and compensation—even though they never had written contracts.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissals were unfair
The dismissals were both procedurally and substantively unfair because no notice was given, no reasons explained, and the employer failed to justify the terminations
The Claimants were paid monthly and were entitled to written notice under section 35. Section 41 required the employer to explain reasons and hear representations before termination. Sections 43 and 45 required the employer to prove valid and fair reasons. The Respondent, having been served, did not appear and did not discharge these obligations. The court therefore concluded the dismissals were unfair both procedurally and substantively.
Entitlement to service pay
Service pay awarded at 15 days' pay per completed year, no evidence that Claimants fell within the section 35(5) exceptions
Section 35(5) entitles a terminated employee to service pay unless they are NSSF contributors, members of a pension/provident fund, or covered by a CBA or more favourable scheme. No evidence of any exception was adduced. Since the Act fixes no rate, the court applied the customary 15 days per year formula based on daily rate derived from basic salary plus house allowance divided by 26.
Accrued leave
Each Claimant entitled to payment of accrued leave because the employer kept no leave records
Section 10 obliges employers to specify leave entitlement in writing, and section 10(7) shifts the burden of disproving an alleged term to the employer who fails to produce written particulars. Section 74(1)(f) requires record-keeping of leave taken and due. The statutory minimum is 21 days annual leave per 12 months of service. The Respondent never participated in the proceedings, so the claims could not be controverted.
Compensation although not pleaded
One month gross wages compensation awarded to each Claimant under section 49(1)(c) despite not being pleaded
Compensation is a statutory remedy for unfair termination alongside reinstatement and re-engagement. The Claimants were lay persons without legal training, and their failure to plead compensation should not bar the award where unfairness is established. The court considered the thirteen factors in section 49(4) and awarded each Claimant one month's gross wages at termination.
Legal principles established
#- The burden of proving unfair termination rests on the employee, while the burden of justifying the grounds for termination rests on the employer (section 47(5) Employment Act)
- Where an employer fails to produce written particulars of employment, the burden of disproving an alleged term falls on the employer (sections 10(7) and 74(1)(f))
- Failure to plead compensation under section 49(1)(c) is no bar to an award of compensation once termination is found unfair
- Service pay is calculated by converting monthly wages (basic salary plus house allowance) into a daily rate by dividing by 26, multiplying by 15 days per completed year, then by years served
Court orders
#- 1.Declaration that the termination of each Claimant's employment was unfair
- 2.Award of service pay, one month pay in lieu of notice, accrued leave and one month compensation to each Claimant as itemised in paragraph 39 (totalling Kshs 166,788, Kshs 186,960, Kshs 152,197, Kshs 146,616, Kshs 146,616, Kshs 98,464 and Kshs 133,824 respectively)
- 3.Respondent to issue each Claimant with a Certificate of Service within 10 days
- 4.No order as to costs
- Jurisdiction invoked
- Employment and labour relations dispute heard under the Employment Act; the court did not cite a specific jurisdictional article
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Chege & 6 others v Aqua Plumbing Company Limited [2013] KEELRC 622 (KLR)", Case Analysis (2013). Not stated in judgment (Cause filed 29 August 2012, Industrial Court, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/622/eng@2013-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.