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ELRCAllowedCause No 2092 of 2011· [2016] KEELRC 247 (KLR)

Patrick Aduka Ahiti v Govinda & Sons (K) Ltd [2016] KEELRC 247 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
2 December 2016
1,748 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan mason fired verbally while on leave won Kshs.199,800 because the employer proved nothing and followed no fair procedure.

What this practically means

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Executive summary

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The claimant sued by memorandum of claim filed on 13th December 2011 seeking compensation for unlawful and unfair termination of employment and terminal benefits: one month's salary in lieu of notice (Kshs.13,500), payment in lieu of untaken leave for three years (Kshs.40,500) and service gratuity at eighteen days' salary per year (Kshs.24,300). The respondent denied employing the claimant directly, asserting he was engaged, and terminated, by independent contractors, particularly one George Odeny. The claimant testified that he worked continuously for the respondent as a mason from 4th February 2008 at a daily wage of Kshs.450; that he obtained leave from his supervisor from 16th March 2011 to 4th April 2011 for a funeral; and that on reporting back his services were verbally terminated without notice or reason. The court framed three issues: identity of the employer, validity and fairness of the termination, and entitlement to relief. On the evidence, the court found no documentary support for the sub-contractor narrative, noting RW1's concession that records listed George Odeny as assistant supervisor and that the respondent's project manager issued the certificate of service. The claimant was held to be the respondent's employee for three years. His termination was found to lack a valid reason and to breach sections 41 and 45 of the Employment Act, informed by ILO Convention No. 158 under Article 2(6) of the Constitution. Judgment was entered for the claimant for Kshs.199,800, with interest from the date of filing suit and costs.

Key legal issues

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01

Whether the claimant was the respondent's employee or an employee of a sub-contractor

Holding

The claimant proved on a balance of probability that he was the respondent's employee for three years; there was no documentary evidence that George Odeny was a sub-contractor.

Reasoning

RW1's own records described George Odeny as an assistant supervisor, not a sub-contractor, and RW1 could not explain why Mr. Owiti, the respondent's project manager, issued the claimant's certificate of service. The claimant testified consistently that he worked under the respondent's supervision at a daily wage of Kshs.450 for three years. On a balance of probability the employment relationship with the respondent was established.

p. 3
02

Whether the termination was for a valid reason and through a fair procedure

Holding

The termination lacked a valid reason and breached the fair procedure required under sections 41 and 45 of the Employment Act.

Reasoning

The claimant was terminated verbally while on authorised leave, without notice, without charges and without any explanation or opportunity to be heard. Section 45(2) of the Employment Act, reflecting ILO Convention No. 158 ratified under Article 2(6) of the Constitution, requires a valid reason; section 41(1) requires an explanation and a right to a representative. None of these requirements was met.

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03

Whether the claimant is entitled to the reliefs sought

Holding

The claimant was awarded notice pay, leave pay, service gratuity and ten months' salary as compensation for unfair termination.

Reasoning

Having found the termination unlawful, the court invoked section 49(1)(c) as read with section 49(4) of the Employment Act. The claimant lost his job without notice, without terminal benefits, through no fault of his own, and had not secured alternative employment except intermittent jua kali work. Compensation of ten months' salary plus notice pay, leave pay and gratuity was awarded accordingly.

p. 4

Legal principles established

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  • The employment of a worker shall not be terminated unless there is a valid reason connected with the worker's capacity, conduct or the operational requirements of the undertaking, as embodied in section 45(2) of the Employment Act and ILO Convention No. 158.
  • An employer must, before terminating employment on grounds of misconduct, poor performance or incapacity, explain the reason to the employee and afford him an opportunity to have a representative present, per section 41(1) of the Employment Act.

Court orders

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  1. 1.Compensation for unlawful and unfair termination of employment Kshs.135,000 (10 months' salary)
  2. 2.Payment in lieu of one month notice Kshs.13,500
  3. 3.Payment in lieu of untaken leave Kshs.27,000
  4. 4.Service gratuity at eighteen (18) days salary for each completed year of service Kshs.24,300
  5. 5.Total award of Kshs.199,800
  6. 6.Interest at court rates from date of filing suit till payment in full
  7. 7.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Actsection 45(1), 45(2)(a), (b), (c)
  • Employment Actsection 41(1)
  • Employment Actsection 49(1)(c), 49(4)
  • Employment Act 2007No. 11 of 2007
  • Constitution of Kenya 2010Article 2(6)
  • ILO Convention No. 158Article 4

Cases cited (1)

  • Fred A. Odhiambo vs. The Hon. Attorney General & another
    [2013] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act No. 11 of 2007); cause filed as a memorandum of claim before the Industrial Court

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, "Patrick Aduka Ahiti v Govinda & Sons (K) Ltd [2016] KEELRC 247 (KLR)", Case Analysis (2016). Cause No 2092 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/247/eng@2016-12-02

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