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ELRCPartially AllowedCause No 68 of 2014· [2015] KEELRC 1369 (KLR)

Reuben Lucheleli Shikuri v Eldoret Packers Ltd [2015] KEELRC 1369 (KLR)

Employment and Labour Relations Court
6 March 2015
1,949 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded a driver Kshs 385,514 for underpayment and unpaid leave, but ruled his resignation was voluntary, not forced.

What this practically means

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Executive summary

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Reuben Lucheleli Shikuri sued Eldoret Packers Ltd in the Employment and Labour Relations Court at Nakuru claiming unlawful/unfair termination, pay in lieu of notice and leave, gross underpayments, overtime pay and compensation. The court framed six issues: the Claimant's occupation, whether his resignation was voluntary or constructive dismissal, underpayment, overtime, outstanding leave, and remedies. On occupation, the court inferred under section 10(7) of the Employment Act, 2007, from the unchallenged evidence of vehicle registrations and the employer's failure to issue a written contract, that the Claimant was a driver (heavy commercial vehicle). On separation, the court examined the resignation letter of 2 November 2013 and found its tone inconsistent with coercion, holding the resignation voluntary and the contract not unfairly terminated. Using the Respondent's salary sheets and successive wage Legal Notices, the court found systematic underpayment from May 2008 to October 2013 and awarded Kshs 355,429/-. The overtime claim failed for want of any contractual or statutory basis, the court cautioning parties against expecting the court to fill evidentiary gaps. Leave encashment records established leave for 2007 onwards, so pay in lieu of leave was awarded only for 2004-2006 at Kshs 30,085/-. Total award: Kshs 385,514/-. Pay in lieu of notice and compensation were refused, a Certificate of Service was ordered, and each party was to bear its own costs, the Claimant being denied costs for late submissions. Delivered at Nakuru on 6 March 2015 by Radido Stephen, Judge.

Key legal issues

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01

Occupation of the Claimant

Holding

The Claimant was a driver (heavy commercial vehicle), inferred under section 10(7) of the Employment Act, 2007 because the employer failed to issue a written contract

Reasoning

The Claimant testified to the registration numbers of heavy commercial vehicles assigned to him and this was unchallenged. The employer, on whom the burden shifted, failed to produce registration books to rebut this. No written contract was issued after the Employment Act, 2007 commenced despite the mandatory requirement under section 9. The court therefore invoked section 10(7) to conclude he was a heavy commercial vehicle driver, which informed the applicable minimum wage notices.

p. 2
02

Voluntary resignation or constructive dismissal

Holding

The resignation was voluntary and not under duress or coercion; the contract was not unfairly terminated

Reasoning

The Claimant alleged the Director coerced him into writing a resignation letter on 2 November 2013. The court examined the tone of the resignation letter, which thanked the employer and made no mention of duress. The court held that a coerced employee would ordinarily mention coercion in the letter, though each case turns on its own facts. On the evidence the resignation was found voluntary, so the claim of constructive dismissal failed.

p. 3
03

Underpayment

Holding

The Claimant was underpaid against prescribed minimum wages from May 2008 to October 2013, and was awarded Kshs 355,429/-

Reasoning

The court compared the Claimant's gross wages, evidenced by the Respondent's staff salary sheet, against the prescribed minimum wages in successive Legal Notices (Nos. 38 of 2006, 70 of 2009, 98 of 2010, 64 of 2011, 71 of 2012 and 197 of 2013), factoring 15% house allowance for earlier periods. Period-by-period computation produced shortfalls totalling Kshs 355,429/-. This entitlement depended on statutory minimums, not the manner of separation.

p. 5
04

Overtime

Holding

The claim for overtime failed for want of any contractual or statutory foundation

Reasoning

The Claimant pleaded 4 hours' overtime daily plus weekend work, claiming Kshs 1,070,203/-. The court perused section 27 of the Employment Act, 2007 and found it does not prescribe working hours beyond a weekly rest day. The Claimant cited no provision of the Labour Institutions Act fixing hours. The court cautioned parties not to expect the court to fill evidentiary and legal gaps, especially where represented.

p. 4
05

Outstanding leave

Holding

The Claimant was awarded pay in lieu of leave for 2004-2006 only, totalling Kshs 30,085/-

Reasoning

The Claimant pleaded he did not go on leave from 2004 to 2009. The Respondent produced leave/encashment records for 2007 to 2013, showing leave was taken or encashed in those years. The court found leave was not taken in 2004, 2005 and 2006 or that records were not kept, and awarded the equivalent of prescribed minimum pay in lieu of leave for those three years.

p. 4

Legal principles established

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  • Under section 10(7) of the Employment Act, 2007, where an employer fails to issue a written contract, the court may infer the terms of employment from available circumstances including prescribed wage notices and licensing classifications
  • A coerced employee seeking to establish constructive dismissal must demonstrate intolerable working conditions or breach of a fundamental term, and an employee who resigns under duress would ordinarily mention coercion in the resignation letter

Court orders

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  1. 1.Respondent to pay the Claimant accrued/outstanding leave of Kshs 30,085/-
  2. 2.Respondent to pay the Claimant underpayments of Kshs 355,429/-
  3. 3.Total award of Kshs 385,514/- to be paid by the Respondent to the Claimant
  4. 4.All other reliefs dismissed
  5. 5.Claimant denied costs for late filing of submissions
  6. 6.Each party to bear own costs
  7. 7.Respondent to issue the Claimant a Certificate of Service

Authorities

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Legislation

  • Employment Act, 2007sections 9, 10(7), 27
  • Traffic Actclass 'b' and class 'c' driving licences
  • Regulation of Wages (General) Orderclassification of drivers
  • Legal Notice No. 38 of 2006minimum wage for driver (heavy commercial vehicle), Eldoret
  • Legal Notice No. 70 of 2009prescribed minimum basic wage
  • Legal Notice No. 98 of 2010prescribed minimum basic wage
  • Legal Notice No. 64 of 2011prescribed minimum wage
  • Legal Notice No. 71 of 2012prescribed minimum wage
  • Legal Notice No. 197 of 2013prescribed minimum wage
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Institutions Act (first-instance employment cause)

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, "Reuben Lucheleli Shikuri v Eldoret Packers Ltd [2015] KEELRC 1369 (KLR)", Case Analysis (2015). Cause No 68 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1369/eng@2015-03-06

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