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ELRCPartially AllowedCause No 1198 of 2012· [2014] KEELRC 794 (KLR)

Francis Ndanyi Musera v Motorways Construction Company [2014] KEELRC 794 (KLR)

Industrial Court of Kenya
11 February 2014
LNLINNET NDOLO
1,360 words in judgment
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The bottom line

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A Kenyan court ruled the worker abandoned his job, awarding him only unpaid wages, because the employer's witnesses were more credible.

What this practically means

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Executive summary

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The Claimant, Francis Ndanyi Musera, sued Motorways Construction Company for unfair termination of employment and unpaid terminal dues, claiming he was employed as a Steel Fixer on 15th June 2011 at Kshs. 21,521 and terminated verbally without notice or hearing on 21st March 2012. He sought a declaration of unfair termination, notice pay, March 2012 salary, prorata leave, service gratuity, overtime, twelve months' compensation, a certificate of service, costs and interest. The Respondent denied the employment dates, asserting the Claimant was engaged in August 2011 as a general worker and later turn boy; it alleged that on 14th March 2012 the Claimant drove an Actros truck without authorisation and hit a concrete batching plant, causing damage of Kshs. 158,580, and thereafter absconded. It counterclaimed for the damage. The Court adopted 15th June 2011 as the effective employment date under section 10(7) of the Employment Act because the Respondent failed to comply with section 9(2). Following Samuel G. Momanyi, the Court treated section 45(3) as unconstitutional and considered the unfair termination claim on its merits. However, it found the Respondent's witnesses (Livondo and Karue) credible and concluded the Claimant absconded duty after the accident, dismissing the unfair termination, notice, leave and gratuity claims. The Claimant was awarded Kshs. 10,042 for 14 days worked in March 2012 plus a certificate of service. The counterclaim failed for want of proof of causation of the claimed expenses. Each party bore its own costs.

Key legal issues

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01

Effective date of employment

Holding

The Court adopted 15th June 2011 as the effective date of employment per the Claimant's assertion, invoking section 10(7) of the Employment Act

Reasoning

Section 9(2) of the Employment Act places the responsibility of drawing a contract of employment on the employer. Apart from an August 2011 staff list, the Respondent produced no other document evidencing the employment. Having failed to discharge its statutory mandate, section 10(7) was invoked in the Claimant's favour.

p. 2
02

Whether termination was unfair

Holding

The unfair termination claim failed; the Court preferred the Respondent's evidence that the Claimant absconded duty after causing an accident

Reasoning

Under section 47(5) the burden of proving unfair termination rests on the employee while the burden of justifying grounds rests on the employer. The Claimant said he was told to go home and never recalled; the Respondent's witnesses testified he absconded after a 14th March 2012 accident. The Court found Livondo and Karue credible and rejected the Claimant's account.

p. 3
03

Respondent's counterclaim for damages

Holding

The counterclaim of Kshs. 158,580 was not proved and was dismissed

Reasoning

The Respondent produced a sales receipt for spare parts and petty cash vouchers for panel beating and fibre glass, but there were no details linking those expenses to the damage caused to the truck and batching plant on 14th March 2012. The claim therefore failed for want of proof.

p. 3

Legal principles established

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  • Where an employer fails to draw up a written contract of employment as required by section 9(2) of the Employment Act, the court adopts the employee's stated date of employment under section 10(7)
  • Section 45(3) of the Employment Act, which excludes employees with less than 13 months' service from unfair termination claims, is unconstitutional as discriminatory

Court orders

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  1. 1.The claim for unfair termination of employment is dismissed
  2. 2.The claims for notice pay, prorata leave and service gratuity are dismissed
  3. 3.The Claimant is awarded Kshs. 10,042 being salary for 14 days worked in March 2012 subject to statutory tax
  4. 4.The Claimant is entitled to a certificate of service
  5. 5.The Respondent's counterclaim is dismissed
  6. 6.Each party will bear their own costs

Authorities

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Legislation

  • Employment Act, 2007section 9(2)
  • Employment Act, 2007section 10(7)
  • Employment Act, 2007section 45(3)
  • Employment Act, 2007section 47(5)

Cases cited (1)

  • Samuel G. Momanyi Vs. the Hon. Attorney General & SDV Transami Kenya Ltd
    [2012 eKLR]
Jurisdiction invoked
Employment and labour relations dispute under the Employment Act, 2007 before the Industrial Court of Kenya

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, "Francis Ndanyi Musera v Motorways Construction Company [2014] KEELRC 794 (KLR)", Case Analysis (2014). Cause No 1198 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/794/eng@2014-02-11

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