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ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 267 (KLR)

Simon Mule Mutua & another v China National Aero-Technology International Engineering Ltd [2015] KEELRC 267 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
5 October 2015
NMNzioki wa Makau
1,727 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed employers must prove contracts and fair termination, or pay compensation when they cannot.

What this practically means

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Executive summary

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The Claimants, employed as pipe fitters, sued the Respondent for unlawful dismissal and non-payment of dues arising from termination on 24th July 2014, claiming house allowance, leave, rest days, notice pay, service pay and 12 months' wages for loss of employment. The Respondent denied that the Claimants were its employees, asserting they were casual labourers who left employment voluntarily and were paid all dues. The parties consented to resolution by documentary evidence under Rule 21 of the Industrial Court (Procedure) Rules 2010. The court found that the Respondent's own documents, particularly the salary sheets and the acknowledgement letter of 24th July 2014, contradicted its defence of voluntary exit, since the letter acknowledged payment of dues upon termination of services without any mention of absconding or resignation. Applying Section 10(7) of the Employment Act, the court held the burden lay on the employer to prove the nature of the contract and the manner of termination, a burden the Respondent failed to discharge; the termination was therefore without notice or reason. However, claims for rest days and leave failed because the Respondent's records showed sufficient off days and no evidence proved continuous work. The claim was partially successful: each Claimant received one month's notice pay and three months' compensation for unlawful termination, the 1st Claimant additionally received service pay and a certificate of service, and the 2nd Claimant a certificate of service. The Claimants were awarded costs and interest from the date of judgment until payment in full.

Key legal issues

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01

Nature of employment and burden of proof

Holding

The Respondent failed to prove the Claimants were casual labourers or to produce written contracts; under Section 10(7) the burden lay on the employer

Reasoning

The only documents were Temporary Workers Salary Sheets and an acknowledgement letter. The salary sheets did not show daily payment, and the letter of 24th July 2014 acknowledged payment of dues upon termination, contradicting the claim of voluntary exit. Failure to produce written contracts meant the employer bore the burden of proving the terms of employment and the manner of termination.

p. 3
02

Lawfulness of termination

Holding

Termination was without notice or valid reason, in breach of the Employment Act procedure

Reasoning

The letter of 24th July 2014 confirmed the contract was extinguished by the Respondent and made no mention of absconding or resignation. Allegations of warning letters were unsupported by actual letters, and no evidence of valid reasons for termination was adduced.

p. 3
03

Rest days and leave claims

Holding

Claims for rest days and leave days failed for lack of evidence

Reasoning

No evidence was adduced that the Claimants never went on leave or worked without a break; the Respondent's records showed sufficient off days.

p. 3

Legal principles established

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  • The burden is on the employer to show the manner and nature of the contract and how termination occurred

Court orders

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  1. 1.For 1st Claimant: Notice pay for one month Kshs. 10,620/-
  2. 2.For 1st Claimant: Service pay Kshs. 5,310/-
  3. 3.For 1st Claimant: Compensation for unlawful termination for 3 months Kshs. 31,860/-
  4. 4.For 1st Claimant: Certificate of service
  5. 5.For 2nd Claimant: Notice pay for one month Kshs. 9,500/-
  6. 6.For 2nd Claimant: Compensation for unlawful termination for 3 months Kshs. 28,500/-
  7. 7.For 2nd Claimant: Certificate of service
  8. 8.Costs of the suit to the Claimants
  9. 9.Interest on the awarded sums from date of judgment till payment in full

Authorities

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Legislation

  • Labour Institutions (Building & Construction Industry (Wages) Order 2012null
  • Employment ActSection 41(1)
  • Employment ActSection 44(4)
  • Employment ActSection 35(1)(c)
  • Employment Act 2007Section 10(7)
  • Employment ActSection 28(1)
  • Employment ActSection 74(1)(f)
  • Industrial Court (Procedure) Rules 2010Rule 21

Cases cited (2)

  • Peter Okumu Oloo v Simba Pharmaceuticals Ltd
    [2013] eKLR
  • Nelson Onyango Othoo v Wilham Kenya Limited
    [2012] eKLR
Jurisdiction invoked
Employment and labour relations dispute resolved under Rule 21 of the Industrial Court (Procedure) Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Simon Mule Mutua & another v China National Aero-Technology International Engineering Ltd [2015] KEELRC 267 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/267/eng@2015-10-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.