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 Number 205 of 2013· [2016] KEELRC 546 (KLR)

Thomas Mghanga Wandoe v Kassam Hauliers Limited [2016] KEELRC 546 (KLR)

Industrial Court of Kenya at Mombasa
23 September 2016
1,042 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

A Kenyan court awarded an electrician 12 months' salary because his employer fired him without valid reasons or a fair hearing.

What this practically means

#

Executive summary

#
The Claimant, Thomas Mghanga Wando, sued Kassam Hauliers Limited claiming his employment as an Electrician, begun on 13th January 2009, was terminated without cause or notice on 22nd May 2013 after he was accused of stealing batteries while returning from a truck repair in Longonot. He sought a declaration of unfair termination, 12 months' salary as compensation, one month's salary in lieu of notice, terminal benefits, a certificate of service, costs and interest. The Respondent denied employing him in a general Statement of Response, but its Witness Statement conceded he was a casual employee; it adduced no evidence, and the proceedings were closed after it failed to attend court. The Court found, on the Claimant's uncontroverted evidence and his gate pass, that he was a regular employee who worked continuously for over four years. The Respondent failed to justify the termination under Sections 43 and 45 of the Employment Act 2007, and no show-cause letter, charges or hearing preceded the dismissal, contrary to Section 41. Termination was therefore unfair. The Court awarded 12 months' gross salary (Kshs. 192,000) and one month's notice pay (Kshs. 16,000), a certificate of service, costs against the Respondent, and interest at 14% per annum from delivery of the Award. The claim for terminal dues of Kshs. 34,667 was rejected as unexplained, and service pay was barred by the Claimant's NSSF subscription.

Key legal issues

#
01

Status of employment: casual or regular

Holding

The Claimant was a regular employee employed continuously from 13th January 2009 to 22nd May 2013, not a casual employee

Reasoning

The Statement of Response denied employment but the Respondent's Witness Statement conceded casual employment. No evidence was availed to support casual status. The Claimant's uncontroverted evidence, including a gate pass bearing the Respondent's name, showed continuous work as an Electrician over more than four years, inconsistent with casual employment.

p. 2
02

Fairness of termination

Holding

Termination was unfair: no valid reasons were established and fair procedure under Sections 41, 43 and 45 of the Employment Act was disregarded

Reasoning

The Respondent alleged theft of batteries but made no police report, gave no notice, no show-cause letter, no charges and no hearing, and did not attend court to justify the termination. The employer's statutory burden under Sections 43 and 45 to prove valid reasons and under Section 41 to follow fair procedure was not discharged, rendering the termination unfair.

p. 2
03

Terminal dues claim

Holding

The claim for Kshs. 34,667 in terminal dues was rejected as unexplained, and service pay was excluded because the Claimant contributed to NSSF

Reasoning

The Claimant did not explain the composition of the sum claimed as terminal dues. If meant as service pay, eligibility was excluded by his own evidence of NSSF subscription. The Court observed terminal dues in a disputed exit mean all dues payable on exit except compensation for unfair termination, but the burden was on the Claimant to particularise the claim.

p. 2

Legal principles established

#
  • Continuous work over years excludes casual employment; the burden lies on the employer to justify termination under Sections 43 and 45 of the Employment Act
  • An employer who fails to justify termination with valid reasons and fair procedure effects unfair termination

Court orders

#
  1. 1.A declaration that termination was unfair
  2. 2.The Respondent shall pay the Claimant compensation equivalent of 12 months' salary at Kshs. 192,000
  3. 3.The Respondent shall pay 1 month salary in lieu of notice at Kshs. 16,000 (total Kshs. 208,000)
  4. 4.Certificate of Service to issue to the Claimant
  5. 5.Respondent to pay the costs of the Claim
  6. 6.Interest at 14% per annum from the date of delivery of the Award until payment in full

Authorities

#

Legislation

  • Employment ActSections 41, 43, 45, 51
  • Industrial Court (Procedure) RulesRule 27(1)(a)
Jurisdiction invoked
Rule 27(1)(a) of the Industrial Court (Procedure) Rules 2010; disputes of unfair and unlawful termination under the Employment Act 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Thomas Mghanga Wandoe v Kassam Hauliers Limited [2016] KEELRC 546 (KLR)", Case Analysis (2016). Cause Number 205 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/546/eng@2016-09-23

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