Eric Musa Oruori v Mary Wambui Kang’ethe T/A New Neem Supermarket [2014] KEELRC 1495 (KLR)
The bottom line
#A Kenyan supermarket was ordered to pay a security guard over Kshs.130,000 after it fired him while he recovered from being injured at work.
What this practically means
#Executive summary
#Key legal issues
#Proof of employment relationship
Employment relationship proved on a balance of probabilities despite respondent's non-attendance, corroborated by medical evidence.
The respondent was served with hearing notices but never appeared or filed a response. The claimant's testimony was corroborated by his medical history showing treatment for injuries sustained in an attack at work at 3 am. With no contrary evidence, the court found the employment relationship established on a balance of probabilities.
Unfair termination
Verbal dismissal after work injury was unfair under section 45 of the Employment Act.
The claimant returned to work after being injured by thugs at 3 am during his duties, losing a finger, and was told there was no work for him. The dismissal was verbal and without lawful reason, breaching section 45 of the Employment Act. The respondent also failed to report the injury under the Work Injury Benefits Act.
Basis for computation of remedies
Court adopted statutory minimum wage of Kshs.6,893 plus 15% house allowance (Kshs.7,927) rather than the pleaded Kshs.5,500.
Although the claimant pleaded a salary of Kshs.5,500, the court took judicial notice of section 48 of the Labour Institutions Act and the minimum wage for night watchmen under the Regulation of Wages (Amendment) Order, 2009, adopting Kshs.6,893 plus 15% house allowance as the basis for all awards.
Quantum of compensatory damages
12 months' salary awarded as compensation, considering length of service and the unreported work injury.
In assessing compensation the court considered the claimant's length of service and the circumstances of termination, particularly that he was injured at work, lost a finger, and the respondent failed to report the injury under the Work Injury Benefits Act for compensation purposes. This warranted the maximum-equivalent award of 12 months' gross salary, Kshs.95,124.
Legal principles established
#- Where a respondent is served and fails to controvert the claimant's allegations, the court may find employment proved on a balance of probabilities.
- Verbal dismissal following an injury sustained at work, without reason, is unfair termination under section 45 of the Employment Act.
Court orders
#- 1.One month's salary in lieu of notice of Kshs. 7,927/=
- 2.Leave pay of Kshs. 12,022.60 for 45.5 days
- 3.Service pay at 15 days for each year for the 2 years worked at Kshs.7,927/=
- 4.Compensatory damages of 12 months' salary in the sum of Kshs.95,124/=
- 5.Costs of the suit to the Claimant
- 6.Interest on decretal sum from date of judgment
- Jurisdiction invoked
- Employment and labour relations dispute under the Employment Act and the Labour Institutions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eric Musa Oruori v Mary Wambui Kang’ethe T/A New Neem Supermarket [2014] KEELRC 1495 (KLR)", Case Analysis (2014). Memorandum of Claim dated 14th October 2011, filed 18th October 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1495/eng@2014-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.