Joseph Kutela Ingati & another v Charles Kahende Kinuthia [2015] KEELRC 433 (KLR)
The bottom line
#Kenya's Employment Court ruled that firing guards without notice or a proper show-cause process was unfair, awarding them pay and compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether termination occurred and whether it was fair
The services of the Claimants were terminated on 16th January 2010 without notice or adherence to the statutory procedure for showing cause
Both parties' narrations pointed to termination in January 2010. Even if the theft allegation were proved, the Respondent did not report the matter to the police or initiate any process to verify the allegations. The statutory show-cause procedure was not followed, so the termination was without notice and unfair.
Employer's duty to keep records
Failure to produce employment records leads to an adverse inference that the employees were not granted leave or rest days
Section 74 of the Employment Act obliges an employer to keep written records of employees, including leave entitlement and weekly rest days. The Respondent admitted he did not have employment records. In the absence of such records, the court draws an inference favourable to the employees on leave and rest days.
Claim for underpayment
The underpayment claim, raised only in submissions, fails as it was not pleaded
Although the Claimants relied on the Regulation of Wages (General) (Amendment) Order 2009 fixing a watchman's salary at Kshs. 6,839/-, the issue was raised for the first time in submissions and was not part of the pleaded claims; the court declined to grant relief on an unpleaded claim.
Legal principles established
#- An employer bears the obligation to keep employment records under section 74 of the Employment Act, and failure to produce them draws an adverse inference against the employer
- Interrogation of an employee cannot suffice for purposes of showing cause; termination without adherence to the statutory procedure is unfair
Court orders
#- 1.1st Claimant: one month in lieu of notice Kshs. 5,000/-
- 2.1st Claimant: leave dues for leave not taken Kshs. 5,000/-
- 3.1st Claimant: pay for 16 days worked in January 2010 Kshs. 2,666/-
- 4.1st Claimant: Kshs. 17,666/- for 53 Sundays worked at double daily rate
- 5.1st Claimant: compensation for unlawful termination for 6 months Kshs. 30,000/-
- 6.2nd Claimant: one month in lieu of notice Kshs. 5,000/-
- 7.2nd Claimant: leave dues for leave not taken Kshs. 5,000/-
- 8.2nd Claimant: pay for 16 days worked in January 2010 Kshs. 2,666/-
- 9.2nd Claimant: Kshs. 17,666/- for 53 Sundays worked at double daily rate
- 10.2nd Claimant: compensation for unlawful termination for 6 months Kshs. 30,000/-
- 11.No order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act and labour claims)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dominic Abala Midigo v AA Lodges [2019] KEELRC 584 (KLR)[2019] KEELRC 584 (KLR)30 Sept 2019
Cite this brief
#Cite this brief
Caselaw, "Joseph Kutela Ingati & another v Charles Kahende Kinuthia [2015] KEELRC 433 (KLR)", Case Analysis (2015). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/433/eng@2015-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.