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ELRCPartially AllowedCause Number 563 of 2014· [2015] KEELRC 388 (KLR)

Charles Getuno Omwenga v Henderson Magare t/a Henderson Magare Timber Yard [2015] KEELRC 388 (KLR)

Industrial Court of Kenya
23 October 2015
JRJames Rika
3,024 words in judgment
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The bottom line

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A Kenyan court ruled an irregularly paid worker was a genuine employee entitled to service pay, but quit employees who cannot prove dismissal win little else.

What this practically means

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Executive summary

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The Claimant sued the Respondent, a timber yard proprietor, in the Industrial Court at Mombasa claiming he was employed from January 1990 as a general worker, salesman and supervisor, and was unfairly and unlawfully dismissed on 9th September 2013. He sought a declaration of unlawful termination, notice pay, severance/service pay for 23 years, public holidays' pay, twelve months' compensation for unfair termination and general damages. The Respondent denied the employment relationship, characterising the Claimant as an irregular errand-runner paid per task, not a regular employee. The court framed two questions: whether an employment relationship existed, and whether it was unfairly terminated. Applying the definitions in the Employment Act 2007 and the control test from Child Welfare Society of Kenya v Margaret Bwire, the court found the uncontested bus tickets, cross-border transactions and payments for services established an employer-employee relationship, holding that irregular payment intervals and family friendship do not defeat employment. However, under Section 47(5) of the Employment Act the Claimant failed to prove unfair termination; his own account showed a voluntary decision to quit after discord with the Respondent. Claims for the declaration, notice pay, public holidays' pay, compensation and damages were rejected. Service pay was awarded discretionarily at 15 days' salary for 10 of the claimed 23 years, given the intermittent nature of the business, computed at Kshs. 18,000 monthly, totalling Kshs. 103,846. There was no order on costs and interest. Judgment was dated and delivered at Mombasa on 23rd October 2015 by Rika J.

Key legal issues

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01

Existence of an employment relationship

Holding

The Claimant was an Employee of the Respondent notwithstanding absence of a written contract or regular pay intervals

Reasoning

The court applied the statutory definitions of 'Employee' and 'Employer' in the Employment Act 2007 and the control test amplified in Child Welfare Society of Kenya v Margaret Bwire. Uncontested bus tickets, cross-border financial transactions and payments by the Respondent and his Wife demonstrated remuneration for labour. The irregular payment intervals and family friendship did not defeat the relationship; the Respondent could not explain it as anything other than employment.

p. 5
02

Unfair and unlawful termination

Holding

Unfair termination not proved; the Claimant appears to have voluntarily quit after a discord with Mr. Magare

Reasoning

Under Section 47(5) of the Employment Act 2007 the employee bears the burden of proving unfair termination. The Claimant's own account - being recalled, quarreled by Mr. Magare, and leaving after receiving Kshs. 31,000 at the end of January 2014 - pointed to a voluntary decision to quit rather than dismissal by the Respondent. The compensation and damages claims therefore failed, as did notice pay.

p. 5
03

Service pay

Holding

Discretionary service pay awarded at 15 days' salary for 10 years, totalling Kshs. 103,846

Reasoning

Service pay under Section 35 of the Employment Act 2007 is due where the employee is not enrolled in another social security scheme; the Respondent made no N.S.S.F or N.H.I.F contributions. Since the business operated on and off and the Claimant's service was not continuous, the court discounted the claimed 23 years to 10 years, using the monthly salary of Kshs. 18,000.

p. 5

Legal principles established

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  • An employment relationship does not depend on the intervals at which the employee is remunerated
  • A contract of employment may be oral or implied, express or in writing, and need not be for a definite period
  • An employee is proven where the employer controls and directs the work and pays for labour; custody of employment records lies with the employer
  • Where an employer fails to produce employment records, the court may accept the employee's account of dates of service
  • A claimant bears the burden of proving unfair termination under Section 47(5) of the Employment Act 2007

Court orders

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  1. 1.The Respondent shall pay to the Claimant a total sum of Kshs. 103,846 in service pay
  2. 2.Other prayers are rejected
  3. 3.No order on costs and interest

Authorities

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Legislation

  • Employment Act 2007Section 2
  • Employment Act 2007Section 35
  • Employment Act 2007Section 47(5)
  • Labour Relations Act 2007definitions of Employee and Employer
  • Labour Institutions Act 2007definitions of Employee and Employer
  • Industrial Court Procedure Rules 2010Rule 27(1)(a)

Cases cited (1)

  • Child Welfare Society of Kenya v Margaret Bwire & Another
Jurisdiction invoked
Jurisdiction of the Industrial Court under the Industrial Court Procedure Rules 2010; jurisdiction conceded by the Respondent

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, "Charles Getuno Omwenga v Henderson Magare t/a Henderson Magare Timber Yard [2015] KEELRC 388 (KLR)", Case Analysis (2015). Cause Number 563 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/388/eng@2015-10-23

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