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ELRCAllowedNot stated in the judgment· [2015] KEELRC 435 (KLR)

Lilian Mutune v Jackson Muiruri Wathigo T/A Murtown Supermarket [2015] KEELRC 435 (KLR)

Employment and Labour Relations Court
15 October 2015
BOByram Ongaya
1,175 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, represented by Kirubi, Mwangi Ben & Company Advocates, sued the respondent supermarket seeking Kshs.273,373.00 for annual leave, salary arrears, rest days, public holidays and underpayment, plus costs and interest. She claimed she was employed as a shop assistant on oral contract from August 2010 to November 2013 at Kshs.4,000.00 per month, working throughout the week without rest or leave, and that her services were terminated with four months' salary arrears unpaid. The respondent denied the employment, alleging the claimant was a casual worker engaged only when needed. The court framed two issues: whether an employment relationship existed and whether the claimant was entitled to the remedies prayed. Relying on section 10(7) of the Employment Act, 2007, the court placed the burden on the employer, who kept no records. The respondent's evidence was found contradictory and incredible - the witnesses were incoherent about the scope of the job, gave conflicting accounts of casual workers, and the work assigned was held to be of a permanent nature. The claimant's testimony was accepted as credible. The respondent also refused to co-operate with the Murang'a County labour officer, who computed the terminal dues using Legal Notice No. 71 of 1.05.2012 minimum wage for a shop assistant. That computation was found justified and not faulted. Judgment was entered for the claimant for Kshs.273,373.00 payable by 1.12.2015, with default interest from 22.08.2014, and the respondent was ordered to pay the claimant's costs.

Key legal issues

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01

Whether an employment relationship existed between the claimant and the respondent

Holding

The court found the claimant was employed as a shop assistant without a break from August 2010 to November 2013, rejecting the respondent's casual-labour defence as contradictory and incredible.

Reasoning

Under section 10(7) of the Employment Act, 2007, the burden of proving or disproving alleged terms of employment fell on the employer, who kept no records. The respondent's witnesses were incoherent about the scope of the job, could not explain how daily cleaning work was done when the claimant was allegedly not needed, and gave contradictory evidence about casual workers and qualifications. The work assigned was of a permanent nature.

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02

Whether the claimant was entitled to the remedies as prayed for

Holding

Judgment was entered for the claimant on all heads of claims as computed by the labour officer, Kshs.273,373.00.

Reasoning

The respondent failed to co-operate with the labour officer and failed to keep employee records, offering incoherent testimony at hearing. The claimant's evidence was found credible; the labour officer's computation, based on Legal Notice No. 71 of 1.05.2012 minimum wage for a shop assistant, was not faulted and was found justified.

p. 2

Legal principles established

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  • Where an employer fails to produce a written contract or written particulars of employment, the burden of proving or disproving an alleged term of employment falls on the employer
  • Work of a permanent nature assigned to a worker is inconsistent with a defence of casual employment

Court orders

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  1. 1.The respondent to pay the claimant Kshs.273,373.00 by 1.12.2015, in default interest at court rates payable from the date of the suit 22.08.2014 till full payment
  2. 2.The respondent to pay the claimant's costs of the suit

Authorities

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Legislation

  • Employment Actsection 10(7)
  • Legal Notice No. 71 of 1.05.2012wage order (minimum wage for shop assistant)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (court of first instance in employment disputes)

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, "Lilian Mutune v Jackson Muiruri Wathigo T/A Murtown Supermarket [2015] KEELRC 435 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/435/eng@2015-10-15

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