Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 539 of 2010· [2015] KEELRC 1645 (KLR)

Ali Hussein Dore & another v Mohamed Orio Burani & another [2015] KEELRC 1645 (KLR)

Employment and Labour Relations Court
23 October 2015
1,466 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that firing workers without reason or notice is unlawful, and denying the employment relationship entirely backfires badly on employers.

What this practically means

#

Executive summary

#
The 1st and 2nd Claimants sued the 1st and 2nd Respondents jointly and severally alleging employment as security guards at the Respondents' Langata construction site on oral contracts, non-payment of house allowance and overtime, and summary dismissal on 4th April 2009 without reason, notice or a termination letter. They sought one month's salary in lieu of notice, service pay, accrued leave days and compensation for unlawful summary dismissal. The Respondents denied ever employing the Claimants. The court noted the oral testimony was mutually destructive, but bank statements obtained on discovery showed consistent twice-monthly deposits of Kshs.3,000 into salary accounts held by both Claimants. The Respondents' own witness admitted knowing the Claimants, confirmed the 1st Respondent owned the 2nd Respondent and that salaries were paid through First Community Bank accounts. The court found the Claimants' evidence credible and the Respondents' denial untruthful. It held the summary dismissal was effected without reason or notice, contrary to Sections 37, 40, 41, 43 and 45 of the Employment Act, and was therefore unlawful and unfair. As the Claimants were not registered with NSSF, they were entitled to gratuity and payment in lieu of notice. The 1st Claimant was awarded Kshs.90,000 (notice, gratuity and ten months' compensation) and the 2nd Claimant Kshs.66,000 (notice, service pay and eight months' compensation), payable jointly and severally with interest at court rates from filing, plus costs. Claims for overtime and accrued leave failed for want of proof.

Key legal issues

#
01

Whether an employment relationship existed on oral contracts

Holding

Court found the Claimants' testimony credible and the Respondents' denial untruthful; employment established

Reasoning

Bank statements produced pursuant to a discovery order showed consistent twice-monthly deposits of Kshs.3,000 into salary accounts held by both Claimants. RW1 admitted knowing the Claimants, confirmed the 1st Respondent owned the 2nd Respondent and that his own salary was paid by the 2nd Respondent through the same bank. The employer could have produced particulars of employment but chose not to without reason, leaving the Claimants' testimony largely uncontroverted.

p. 3
02

Lawfulness of the summary dismissal

Holding

Dismissal without reason or notice was unlawful and unfair

Reasoning

The court found both Claimants were summarily dismissed on 1st April 2009 without any reason being provided and without notice of termination. This fell foul of the procedural and substantive fairness requirements of Sections 37, 40, 41, 43 and 45 of the Employment Act, rendering the dismissal unlawful and unfair and attracting remedies under Section 49.

03

Quantum of compensation

Holding

Ten months' salary for the 1st Claimant (six years' service) and eight months' salary for the 2nd Claimant (two years' service), plus notice pay and gratuity

Reasoning

Under Section 49(1) as read with Section 49(4), compensation considered length of service and good record. The 1st Claimant had six years with a good service record and suffered loss and damage; the 2nd Claimant had two years and lost career prospects. The employer's deception in denying employment warranted compensation at the higher end.

p. 3

Legal principles established

#
  • A summary dismissal without reason and without notice is contrary to Sections 37, 40, 41, 43 and 45 of the Employment Act and is unlawful and unfair.
  • An employee not registered with NSSF is entitled to gratuity for years worked and payment in lieu of notice.
  • A dishonest denial of employment by an employer aggravates the compensation award under Section 49.

Court orders

#
  1. 1.1st Claimant awarded Kshs.6,000 being one month's salary in lieu of notice
  2. 2.1st Claimant awarded Kshs.24,000 being service gratuity at ½ month salary per completed year of service
  3. 3.1st Claimant awarded Kshs.60,000 being ten months' salary compensation for unlawful and unfair loss of employment (total Kshs.90,000)
  4. 4.2nd Claimant awarded Kshs.6,000 being one month's salary in lieu of notice
  5. 5.2nd Claimant awarded Kshs.12,000 being service pay at ½ month salary per completed year of service
  6. 6.2nd Claimant awarded Kshs.48,000 being compensation for unlawful and unfair summary dismissal (total Kshs.66,000)
  7. 7.Awards to be paid jointly and severally by the 1st and 2nd Respondents
  8. 8.Awards to attract interest at court rates from the date of filing suit until payment in full
  9. 9.Respondents to pay the costs of the suit

Authorities

#

Legislation

  • Regulation of Wages and Conditions of Employment Act (repealed)Legal Notice No. 94 of 2004
  • Employment Act, 2007Sections 37, 40, 41, 43, 45, 49(1), 49(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007 cited)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ali Hussein Dore & another v Mohamed Orio Burani & another [2015] KEELRC 1645 (KLR)", Case Analysis (2015). Cause No 539 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1645/eng@2015-10-23

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