Samwel Miyogo Otiso v Sauti Ya Rehema (Sayare) Radio &Television; Network (Cause 47 of 2014) [2014] KEELRC 1409 (KLR)
The bottom line
#Kenyan employers who skip written contracts bear the burden of proving employment terms, and a Kisii court awarded a 'volunteer' unpaid salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was an employee or a volunteer
The court found the claimant worked or served the respondents in some capacity; the respondents' failure to issue an appointment letter meant they could not escape liability by alleging he was a volunteer.
The claimant produced an attachment letter, identity card, press identification card and daily attendance register showing he worked past his attachment period. The respondents, who attended only through a defence asserting volunteer status, led no evidence. The court held that if he were a volunteer, the respondents still owed him a duty to give him a volunteer letter; the absence of any letter was attributable to the respondents.
Burden of proof where no written contract of service exists
Because the respondents failed to comply with sections 9(2) and 10(1) of the Employment Act by not issuing a written contract stating particulars of employment, the burden of proving or disproving the alleged terms of employment fell on them.
Section 9(2) obliges an employer party to a written contract to draw it up stating particulars of employment, and section 10(1) requires particulars to be given not later than two months after employment begins. Having defaulted on these statutory duties, the respondents could not shift the evidential burden to the claimant.
Legal principles established
#- Where an employer fails to issue a written contract of service, the burden of proving or disproving the alleged terms of employment falls on the employer.
- An employer who is party to a written contract of service is responsible for drawing it up stating particulars of employment under section 9(2) of the Employment Act.
Court orders
#- 1.Award of Kshs 80,000/= being salary from August 2012 to March 2013 (8 months at Kshs 10,000/= per month)
- 2.Award of Kshs 8,000/= as prorated salary as terminal benefits for the 8 months worked
- 3.Total award of Kshs 88,000.00/= to the claimant
- 4.Respondents to meet the costs of the suit
- 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, "Samwel Miyogo Otiso v Sauti Ya Rehema (Sayare) Radio &Television; Network (Cause 47 of 2014) [2014] KEELRC 1409 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1409/eng@2014-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.