Leah Khayecha Lutsilili v Nizam Uddin (Cause 250 of 2011) [2014] KEELRC 1295 (KLR)
The bottom line
#A Kenyan court ruled that an employer who fires a worker without a valid reason and fair procedure must pay compensation, even without a written contract.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was fair and justified
The termination was unfair for want of substantive justification and procedural fairness; the Respondent's claim that the Claimant left voluntarily was unsupported by evidence.
The Claimant testified that her employment was terminated when she sought permission to take her sick child to hospital. The Respondent alleged she left voluntarily for better employment but called no witnesses and produced no supporting evidence. The court credited the Claimant's evidence, found no valid reason was established and no due process followed, contrary to Sections 45(2) and 41 of the Employment Act.
Effect of absence of a written contract on the employee's claim
The absence of a written contract is no defence; the court adopts the terms of employment as presented by the Claimant.
Under Section 9(2) of the Employment Act the duty to document the contract rests on the employer, and under Section 10(7) the burden of proving or disproving an alleged term falls on the employer who fails to produce a written contract. Having abdicated this duty, the Respondent could not use that failure as a defence, and the court adopted the Claimant's account of terms.
Entitlement to notice pay, leave pay and service pay
One month's notice pay, leave pay and service pay awarded as the Respondent produced no leave records and no evidence of NSSF contributions.
Section 35(1) entitles the employee to one month's notice pay. The Respondent produced no leave records to show leave was taken, so the leave claim succeeded. There was no evidence the Claimant contributed to NSSF, so service pay was allowed. Claims for overtime, public holidays and off days failed for want of proof.
Legal principles established
#- An employer who fails to draw up a written contract as required cannot rely on that failure as a defence, and the burden of proving terms of employment falls on the employer.
- An employer bears the burden of proving a valid and fair reason for termination and that fair procedure was followed.
Court orders
#- 1.3 months' salary in compensation for unfair termination (Kshs. 15,000.00)
- 2.One month's salary in lieu of notice (Kshs. 5,000.00)
- 3.Leave pay (Kshs. 3,500.00)
- 4.Service pay (Kshs. 2,500.00)
- 5.Total award of Kshs. 26,000.00 with interest at court rates from the date of the award until payment in full
- 6.Respondent to meet the costs of the case
- Jurisdiction invoked
- Industrial Court of Kenya (Labour Institutions Act), unfair termination claim under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Leah Khayecha Lutsilili v Nizam Uddin (Cause 250 of 2011) [2014] KEELRC 1295 (KLR)", Case Analysis (2014). Cause No 250 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1295/eng@2014-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.