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ELRCPartially AllowedNot stated in the judgment extract· [2015] KEELRC 433 (KLR)

Joseph Kutela Ingati & another v Charles Kahende Kinuthia [2015] KEELRC 433 (KLR)

Industrial Court (Employment and Labour Relations Court)
23 September 2015
3,235 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Two security guards employed in August 2008 at Kshs. 5,000/- per month sued their landlord-employer, alleging that after the caretaker left in November 2008 they took on caretaker duties on an agreed additional shared salary which was never paid, and that on 16th January 2010, when they sought their dues, the Respondent terminated their services without notice. They claimed notice pay, 12 months' compensation for unlawful termination, leave pay, unpaid extra-work dues, and compensation for public holidays and Sundays worked. The Respondent denied termination, asserting the Claimants absconded after a theft of a vehicle part from a tenant's vehicle in December 2009, and counterclaimed Kshs. 10,000/- paid to the tenant. The Respondent admitted he kept no employment records. The court held that termination occurred in January 2010 without notice; mere interrogation cannot substitute for the statutory show-cause process, and no report was made to the police over the alleged theft. Relying on section 74 of the Employment Act, the court drew an adverse inference from the absence of records, finding leave and rest days were not granted. The underpayment claim raised for the first time in submissions failed as unpleaded. Judgment was entered for each Claimant for notice pay, leave dues, 16 days' pay for January 2010, 53 Sundays at double rate, and six months' compensation for unlawful termination. The counterclaim was not granted and there was no order as to costs.

Key legal issues

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01

Whether termination occurred and whether it was fair

Holding

The services of the Claimants were terminated on 16th January 2010 without notice or adherence to the statutory procedure for showing cause

Reasoning

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.

p. 4
02

Employer's duty to keep records

Holding

Failure to produce employment records leads to an adverse inference that the employees were not granted leave or rest days

Reasoning

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.

p. 4
03

Claim for underpayment

Holding

The underpayment claim, raised only in submissions, fails as it was not pleaded

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.1st Claimant: one month in lieu of notice Kshs. 5,000/-
  2. 2.1st Claimant: leave dues for leave not taken Kshs. 5,000/-
  3. 3.1st Claimant: pay for 16 days worked in January 2010 Kshs. 2,666/-
  4. 4.1st Claimant: Kshs. 17,666/- for 53 Sundays worked at double daily rate
  5. 5.1st Claimant: compensation for unlawful termination for 6 months Kshs. 30,000/-
  6. 6.2nd Claimant: one month in lieu of notice Kshs. 5,000/-
  7. 7.2nd Claimant: leave dues for leave not taken Kshs. 5,000/-
  8. 8.2nd Claimant: pay for 16 days worked in January 2010 Kshs. 2,666/-
  9. 9.2nd Claimant: Kshs. 17,666/- for 53 Sundays worked at double daily rate
  10. 10.2nd Claimant: compensation for unlawful termination for 6 months Kshs. 30,000/-
  11. 11.No order as to costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 43
  • Employment ActSection 44
  • Employment ActSection 45
  • Employment ActSection 74
  • The Regulation of Wages (General) (Amendment) Order 2009Legal Notice No. 70

Cases cited (3)

  • Fred Makori Ondari v The Management Committee of the Ministry of Works Sports Club
    Cause No. 1079 of 2010
  • Walter Ogal Anuro v Teachers Service Commission
    [2013] eKLR
  • Whencelause Gilbert Jumba Swinnerstone v Ryce East Africa Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act and labour claims)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.