Stephen Mwandware Ndighila v Steel Makers Limited [2014] KEELRC 1383 (KLR)
The bottom line
#A Kenyan employer who couldn't prove a worker's dismissal with proper records was ordered to pay over Kshs 200,000 in terminal benefits and compensation.
What this practically means
#Executive summary
#Key legal issues
#Date and terms of employment
Claimant employed on 15th May 2003 on monthly contracts, not as a casual employee.
The Respondent admitted the 2003 employment date in its Memorandum of Response; the later Memorandum of Defence filed without leave alleged the Athi River plant opened in 2006, but the Respondent's own wage sheet of 22nd October 2005 listed the Claimant as an employee. Being bound by pleadings, the admission stands. Having worked from 2003 to 2008/2009, he was not a casual employee but on monthly contracts under Section 37.
Termination or abscondment
Employment was unfairly terminated on 9th February 2009; the abscondment claim was not proved.
The employer kept no records of the date or manner of termination as required by Sections 10 and 14 of the Employment Act, so under Section 10(7) it bore the burden of disproving the Claimant's account and failed. The locking out of the Claimant by the Manager without observance of Sections 41 and 43 (procedure and valid reason) constituted unfair termination.
Entitlement to reliefs
Claimant awarded notice pay, accrued leave, service pay, 12 months' underpayments and 5 months' salary as compensation; overtime claim dismissed.
Statutory entitlements under the Employment Act did not require the specificity demanded of special damages, the heads having been pleaded and the burden of proof placed on the employer. Notice of 28 days, 119 days' accrued leave, 15 days' service pay per year, 12 months' underpayments limited by the limitation period, and 5 months' compensation (given 5 years 8 months' service) were awarded.
Legal principles established
#- A party is bound by its pleadings; an admission in a memorandum of response on the date of employment binds the respondent.
- A casual employee who works continuously for one month or intermittently for three months converts to monthly contract terms under Section 37 of the Employment Act, 2007.
- Where the employer fails to keep records of dates of commencement and termination of employment, the burden lies on the employer to disprove the employee's allegations under Section 10(7).
- Termination without observance of Sections 41 and 43 of the Employment Act (procedure and valid reason) amounts to unfair termination.
- Special damages pleading authorities inapplicable where statutory employment benefits are claimed under the Employment Act, which places the burden of proof on the employer.
Court orders
#- 1.Judgment for the Claimant: Notice Pay Kshs.12,238.80
- 2.Accrued Leave Kshs.52,014.90
- 3.Service Pay Kshs.32,782.50
- 4.Underpayments Kshs.45,900.40
- 5.Compensation Kshs.65,565.00
- 6.Respondent to pay the claimant costs of the suit and interest at court rates from date of judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction over a memorandum of claim under the Labour Institutions Act, 2007 and the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Mwandware Ndighila v Steel Makers Limited [2014] KEELRC 1383 (KLR)", Case Analysis (2014). Memorandum of claim dated 5th December 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1383/eng@2014-10-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.