Benta Adhiambo Ochoro v Charles Lutta Kasamani t/a Kasamani & Co. Advocates [2014] KEELRC 1319 (KLR)
The bottom line
#Kenyan employers who skip written contracts risk paying disputed salary claims in full, because the court shifts the burden of proof onto them.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent employed the claimants as alleged
Both claimants were employed by the respondent; the failure to draw written contracts could not be used against the employees, and the pleadings admitted a service relationship.
Section 9(2) of the Employment Act 2007 required the employer to draw up a written contract for employment exceeding three months. The respondent admitted employing the 1st claimant as a copy typist and admitted in his defence that the 2nd claimant was attached to his office. Since the respondent, an advocate, never reduced the engagement to writing, he could not dispute the employment relationship or rely on the absence of contracts.
Whether the respondent owes the claimants salary arrears
The respondent was ordered to pay the 1st claimant Kshs 99,000/= and the 2nd claimant Kshs 321,130/=, each with costs and interest.
The employer bore the burden of proving payment and of proving or disproving contractual terms under section 10(7) of the Employment Act. Having produced no written contract, salary vouchers, M-pesa statements or other proof of payment, the respondent left the claims unchallenged, so the court accepted the claimants' evidence on the amounts owed.
Legal principles established
#- Where an employer fails to issue a written contract of service for employment exceeding three months, the employer cannot rely on the employee's failure to produce an employment contract to disprove employment.
- Under section 10(7) of the Employment Act 2007, where an employer fails to produce a written contract, the burden of proving or disproving the alleged terms of employment rests on the employer.
- An employer alleging payment of salaries bears the burden of proving those payments by exhibits such as salary vouchers and M-pesa statements.
Court orders
#- 1.Judgment entered for the 1st claimant for Kshs 99,000/= plus costs and interest
- 2.Judgment entered for the 2nd claimant for Kshs 321,130/= plus costs and interest
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benta Adhiambo Ochoro v Charles Lutta Kasamani t/a Kasamani & Co. Advocates [2014] KEELRC 1319 (KLR)", Case Analysis (2014). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1319/eng@2014-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.