Patrick Aduka Ahiti v Govinda & Sons (K) Ltd [2016] KEELRC 247 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the claimant was the respondent's employee or an employee of a sub-contractor
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.
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.
Whether the termination was for a valid reason and through a fair procedure
The termination lacked a valid reason and breached the fair procedure required under sections 41 and 45 of the Employment Act.
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.
Whether the claimant is entitled to the reliefs sought
The claimant was awarded notice pay, leave pay, service gratuity and ten months' salary as compensation for unfair termination.
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.
Legal principles established
#- 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
#- 1.Compensation for unlawful and unfair termination of employment Kshs.135,000 (10 months' salary)
- 2.Payment in lieu of one month notice Kshs.13,500
- 3.Payment in lieu of untaken leave Kshs.27,000
- 4.Service gratuity at eighteen (18) days salary for each completed year of service Kshs.24,300
- 5.Total award of Kshs.199,800
- 6.Interest at court rates from date of filing suit till payment in full
- 7.Costs of the suit to the claimant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.