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ELRCPartially AllowedCause No 246 of 2014· [2015] KEELRC 336 (KLR)

John Muturi Wanjiku v Samani Construction Limited [2015] KEELRC 336 (KLR)

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

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A Kenyan court awarded a worker Kshs. 280,535 after finding his employer invented an abscondment claim to hide an unfair oral dismissal.

What this practically means

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Executive summary

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The Claimant, John Muturi Wanjiku, sued Samani Construction Limited for unfair termination, claiming notice pay, service pay, housing allowance, compensation of twelve months' wages, punitive damages, a fine under Section 51(3) of the Employment Act and a Certificate of Service. He alleged he was employed from around June 2010, initially as a casual worker, later as a machine operator and then lorry driver, and was orally terminated on 11 October 2013 without valid reasons or due process. The Respondent countered that the Claimant absconded duty on 10 October 2013, days after it began investigating him for using a company vehicle for private purposes, and relied on his NSSF membership to defeat the service pay claim and on his admitted receipt of house allowance. The Court, Wasilwa J, 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 held that the Claimant never absconded but was orally dismissed, noting the absence of a written contract over three years contrary to Section 9(1), the employer's failure to contact the Claimant or notify the labour officer, and its failure to produce investigation documents or acknowledge the demand notice. The termination was found procedurally and substantively unfair under Sections 41 and 45 of the Employment Act. The Court awarded one month's notice pay (Kshs. 21,000), unpaid October salary (Kshs. 2,535) and twelve months' compensation (Kshs. 252,000), totalling Kshs. 280,535 plus costs. Service pay was denied due to NSSF membership under Section 35(5), 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 Claimant was orally dismissed and did not abscond

Reasoning

The Court found the Claimant was engaged in casual employment for three years without a written contract, contrary to Section 9(1) of the Employment Act. Given the Respondent's habit of not communicating in writing, the claim of oral dismissal was credible. The Respondent made no effort to reach the Claimant, never notified the labour officer of any abscondment, and never acknowledged the demand notice. The alleged investigation documents were not produced in evidence.

p. 4
02

Whether the termination was for valid reasons and followed due process

Holding

The dismissal was without valid reasons and without due process, hence unfair and unjustified

Reasoning

Having found an oral dismissal, the Court held that the Respondent failed to follow the procedure prescribed by Section 41 of the Employment Act (notification and hearing) and gave no valid reasons under Section 45. The termination was therefore substantively and procedurally unfair.

p. 4
03

Service pay entitlement

Holding

Service pay is not payable because the Claimant was a member of NSSF

Reasoning

Section 35(5) of the Employment Act excludes from service pay employees who are members of the National Social Security Fund. The Respondent produced a payslip proving the Claimant's registered NSSF membership, and the provisional member statement showed dues being remitted from April 2013.

p. 3

Legal principles established

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  • Where there is contention on the terms of an oral contract, the onus of proving the terms rests on the employer
  • An employer who does not communicate with an employee in writing cannot safely rely on an assertion that the employee absconded; failure to notify a labour officer or respond to a demand notice undermines that claim
  • A contract of service for a period of three years or more must be in writing

Court orders

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  1. 1.One month's salary in lieu of notice of Kshs. 21,000
  2. 2.Unpaid October salary of Kshs. 2,535
  3. 3.Twelve months' salary as compensation for unlawful termination of Kshs. 252,000
  4. 4.Total award of Kshs. 280,535 plus costs of the suit

Authorities

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Legislation

  • Employment Act 2007Section 51(3)
  • Employment Act 2007Section 9(1)
  • Employment Act 2007Section 35(5)
  • Employment Act 2007Section 35
  • Employment Act 2007Section 41
  • Employment Act 2007Section 45
  • Employment Act 2007Section 49(1)
  • Retirement Benefits Actnull
Jurisdiction invoked
Article 162(2) of the Constitution (establishing the Employment and Labour Relations Court); claim filed under the Employment Act 2007

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 336 (KLR)", Case Analysis (2015). Cause No 246 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/336/eng@2015-10-29

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