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ELRCPartially AllowedCause No 246 of 2014· [2015] KEELRC 327 (KLR)

John Muturi Wanjiku v Samani Construction Limited [2015] KEELRC 327 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
29 October 2015
HWHellen S. Wasilwa
1,726 words in judgment
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The bottom line

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Kenya's Employment Court awarded a driver a full year's salary after finding his employer dismissed him orally without proof or procedure.

What this practically means

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Executive summary

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The Claimant, John Muturi Wanjiku, sued Samani Construction Limited alleging that his employment as a machine operator and later lorry driver was orally terminated on 11 October 2013 without valid reasons or due process. He sought declarations of unfair and unconstitutional termination, notice pay, service pay, a Certificate of Service, a fine under Section 51(3) of the Employment Act, housing allowance, and twelve months' compensation. The Respondent countered that the Claimant absconded duty on 10 October 2013 while under investigation for misusing a colleague's assigned vehicle, that NSSF dues were remitted, and that he was not entitled to service pay, notice pay or house allowance. Justice Hellen S. Wasilwa framed three issues: whether the Claimant was terminated or absconded; if terminated, whether there were valid reasons and due process; and what remedies to grant. The court found the employment relationship was conducted orally for three years with no written contract contrary to Section 9(1) of the Employment Act, placed the burden of proof on the employer, and noted the Respondent never tried to reach the Claimant, never notified the labour officer, never acknowledged the demand notice, and failed to produce its investigation documents. It held the Claimant was orally dismissed without Section 41 procedure or valid reasons, rendering the termination unfair under Section 45. The court awarded notice pay of Kshs. 21,000, unpaid October salary of Kshs. 7,535, and twelve months' compensation of Kshs. 252,000, totalling Kshs. 280,535 plus costs. Service pay was refused due to NSSF membership under Section 35, and the remaining claims were held not established.

Key legal issues

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01

Whether the Claimant was terminated or absconded duty

Holding

The court found the Claimant did not abscond but was orally dismissed

Reasoning

The Respondent alleged the Claimant absconded from 10 October 2013. The court noted the employment was casual for 3 years with no written contract contrary to Section 9(1) of the Employment Act. Given the contentious terms, the burden of proof lay on the employer. The Respondent did not attempt to contact the Claimant, never notified the labour officer, never acknowledged the demand notice, and did not produce its investigation documents as exhibits. The court therefore accepted the Claimant's account of oral dismissal.

p. 4
02

Whether the termination was for valid reasons and followed due process

Holding

The termination was unfair and unjustified

Reasoning

Having found an oral dismissal, the court held that it was carried out without following the procedure mandated by Section 41 of the Employment Act (notification and hearing) and without any valid reasons, rendering the termination unfair and unjustified under Section 45 of the Employment Act.

p. 4
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What remedies should be granted

Holding

Notice pay, unpaid October salary and twelve months' compensation awarded; service pay and other heads refused

Reasoning

The court awarded one month's salary in lieu of notice (Kshs. 21,000), unpaid October salary (Kshs. 7,535) and the maximum twelve months' salary compensation (Kshs. 252,000) for the unlawful termination, plus costs. Service pay was refused because the Claimant was an NSSF member, an exception under Section 35 of the Employment Act. The remaining claims were held not established.

p. 4

Legal principles established

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  • Where the terms of a contract of employment are in contention, the onus of proving them rests on the employer, particularly where the employment relationship was conducted orally
  • An employer who alleges that an employee absconded must demonstrate steps to reach the employee and notify the labour officer; failure to do so supports a finding of oral dismissal
  • A contract of employment for a period of three years or more must be in writing under Section 9(1) of the Employment Act
  • Membership of the National Social Security Fund disqualifies an employee from service pay under Section 35 of the Employment Act

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs. 21,000/= awarded to the Claimant
  2. 2.Unpaid October salary of Kshs. 7,535/= awarded to the Claimant
  3. 3.Twelve months' salary as compensation for unlawful termination of Kshs. 252,000/= awarded to the Claimant
  4. 4.Respondent to pay total of Kshs. 280,535/= plus costs of the suit

Authorities

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Legislation

  • Employment Act 2007Section 51(3)
  • Employment Act 2007Section 35(5)
  • Employment Act 2007Section 49(1)
  • Employment ActSection 9(1)
  • Employment ActSection 41
  • Employment ActSection 45
  • Employment ActSection 35
  • Retirement Benefits Acts
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (claim for unfair termination and associated employment remedies)

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, "John Muturi Wanjiku v Samani Construction Limited [2015] KEELRC 327 (KLR)", Case Analysis (2015). Cause No 246 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/327/eng@2015-10-29

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